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/ 



TALKS ABOUT LAW 



WHEREIN 



SUCH LEGAL PRINCIPLES AS TOUCH THE DAILY 

BUSINESS OF THE PEOPLE ARE TREATED 

IN A MANNER WITHIN THE REACH 

OF THE AVERAGE MIND. 



BY 

ROBERT W. WINSTON, 

A Judge of the Superior Courts of North Carolina. 



RALEIGH, N. C: 

Edwards <& Broughton, Publishers, Printers and Binders* 

1894. 



^V 9'/ 

ERRATA. 



Page 41, line 18, for ** settles" write * settle." 
Page 58, line 13, for ** becomes" write '* comes." 
Page 64, line 7, after "mean," insert "the unwritten law existing.' 
Page 88, line 18, for "recovery" write "reconvey." 
Page 93, line 2, strike out " notes and" wherever occurring. Write 
'bond" for "note" on this page. 
Page 93, line 6, for " three" write " ten." 
Page 120, line 11, for "becomes" write " comes." 
Page 130, line 11, for "are" write "is." 
Page 131, line 2, after " ways" insert " generally." 



PREPACE. 



At forty everyone is said to be a fool or his own phy- 
sician. Perhaps the hidden wisdom in the adage is that, 
at that age, one learns to take care of his health. In the 
sense that as one grows older he usually grows vviser and 
more prudent, it may be said that every man is his own 
lawyer. But in no other sense is this true. 

In presenting to the public these simple Talks About 
Law, one object is to prevent unconscious law-breaking. 
To this end such subjects as have to do with the affairs 
of every-day life have been selected. 

Many a man gets into the toils of the law whep he does 
not intend to do so, and because he is ignorant of the law. 
Again, many a man has given up valuable legal rights 
because he did not know that he possessed them. For 
example, the average landlord would not forcibly eject a 
tenant, even at the end of his tenancy, if he knew that in 
so doing the criminal law was violated ; nor would men 
sign notes and bonds with so little concern if they knew 
thut there was practically no defence against the same 
in the hands of innocent holders; the dissemination of 
which information ought to make beautifully less many 
patent churn notes, patent beehive notes, patent fence 
notes, and what not. Our books are full of the burning of 
insured houses, and of the insured failing to recover insur- 
ance because of some violation of the terms of the policv. 



4 Preface. 

So, also, the questions of, what is a fixture, what are 
the rights, duties and privileges of landlord and of tenant, 
of inn-keeper and of guest, of cropper and of field hand, 
are of much practical value to the people of our State. 
Nor can any business man well afford to be without a 
general knowledge of the law governing wills, banks, 
corporations, partnership, married women, Ihe statute of 
limitations and of frauds, the distribution of property, 
and of accidents and damages generally. 

.In treating of these and kindred subjects, technical 
words have been avoided as far as may be ; nor is any 
excuse made for the use of plain homespun w^ords and 
of household illustrations. 

I cannot permit this opportunity to pass without 
speaking a parting word in favor of Law and Order. 
Contempt for law and persistent violation of law will 
soon change any republic into a monarchy. Liberty may 
so soon run to License that timid and insecure property 
will prefer a strong government and less liberty in prefer- 
ence to a weak government and more liberty. 

Let the great Fourth Estate bear these facts in mind, 
and let " reverence of law be breathed by every mother to 
the lisping babe that prattles on her lap ; let it be taught 
in the schools, seminaries and colleges ; let it be written 
in primers, spelling-books and almanacs ; let it be preached 
from pulpits, and proclaimed in legislative halls, and 
enforced in courts of justice ; in short, let it become the 
political religion of the nation." 



WITHOUT LAW THERE IS NO SECURITY. 



JEREMY BENTHAM. 



Law alone has accomplished what all the natural feel- 
ings were not able to do; law alone has been able to 
create a fixed and durable position, which deserves the 
name of Property. The law alone could accustom men 
to submit to the yoke of foresight, at first painful to be 
borne, but afterwards agreeable and mild ; it alone could 
encourage them in labor, superfluous at present, and which 
they are not to enjoy till the future. Economy has as 
many enemies as there are spendthrifts, or men who w^ould 
enjoy without taking the trouble to produce. Labor is 
too painful for idleness ; it is too slow for impatience ; 
Cunning and Injustice underhandedly conspire to appro- 
priate its fruits; Insolence and Audacity plot to seize 
them by open force. Hence Society, always tottering, 
always threatened, never at rest, lives in the midst of 
snares. It requires, in the legislator, vigilance continually 
sustained, and power always in action, to defend it against 
his constantly reviving crowd of adversaries. 

The law does not say to a man, " Work, and I will 
reward you," but it says to him, "Work, and by stopping 
the hand that would take them from you I will insure to 
you the fruits of your labor, its natural and sufficient 
reward, which, without me, you could not preserve." If 



6 Without Law titer e is No Security. 

industry creates, it is the law which preserves. If at the 
first moment we owe everything to labor, at the second 
and every succeeding moment we owe everything to the 
law. 

In order to form a clear idea of the whole extent which 
ought to be given to the principle of security, it is neces- 
sary to consider that man is not, like the brutes, limited 
to the present time, either in enjoyment or suffering, but 
that he is susceptible of pleasure and pain by anticipation, 
and that it is not enough to guard him against an actual 
loss, but also to guarantee to him, as much as possible, 
his possessions against future losses. The idea of his 
security must be prolonged to him throughout the whole 
vista that his imagination can measure. 

This disposition to look forward, which has so marked 
an influence upon the condition of man, may be called 
expectation — expectation of the future. It is by means 
of this we are enabled to form a general plan of conduct; 
it is by means of this that the successive moments which 
compose the duration of life are not like isolated and 
independent points, but become parts of a continuous 
whole. Expectation is a chain which unites our present 
and our future existence, and passes beyond ourselves to 
the generations which follow^ us. The sensibility of the 
the individual is prolonged through all the links of this 
chain. The principle of security comprehends the main- 
tenance of all these hopes ; it directs that events, inasmuch 
as they are dependent upon the laws, should be conformed 
to the expectations to which the laws have given birth. 



CONTENTS. 



NUMBER ONE. 
Law of the Farm. 

Landlord and tenant— Has landlord always first lien? — Tenant neg- 
lecting crop— When landlord may seize crop— Has a merchant lien 
on an abandoned crop? — Tenant guilty of misdemeanor — Purchaser 
of crop from tenant liable to landlord— So warehousemen liable. 
13-16. 

NUMBER TWO. 
Farming Contracts. 

Seizing last year's crop for rent — "Hands" — Breach of contracts — 
** Hands" leaving — How to contract with hands. 17-20. 

NUMBER THREE. 
Enticing Servants. 

Certificate of character— What the statute says— Illustrations of 
enticing servants— Minors not bound unless parents contract — North 
Carolina labor best. 2 1-23. 

NUMBER FOUR. 
Fixtures. 

Questions asked — Fixtures, as between landlord and tenant, mort- 
gagor and mortgagee, etc. — The test of a fixture— Sometimes a house 
not a fixture— How about an engine and machinery ?— Are loose plank 
on floor fixtures? — Tobacco flues— Fruit trees — Manure. 24-27. 

NUMBER FIVE. 
Some Damage Cases. 

Smith on Contracts— What is a tort? — Suck-egg dog— Sheep-killing 
dog — Chicken-eating sow— May kill sow to save the duck — Vicious 
bull— Bad bridges — Fireworks — Frightening horse with drum— With 
elephant — With military company — With railroad engine — Produce 
burned on railroad — Railroad failing to ship in time— Cars not stop- 
ping at depot— Punitive damages— Failing to deliver telegram — Ma- 
chinery does not arrive on time— Bad fences —Selling liquor to minor. 
28-37. 



, 8 Contents, 

NUMBER SIX. 
Accidents from Spring-guns, Steel-traps, Dangerous Machines, 

ETC. 

Spring-gun — Spikes in trees — Spring-gun in dwelling — As to tres- 
passers — No admittance — Defective machinery and other cases — 
Chickens in the garden. 38-41 . 

NUMBER SEVEN. 
Contributory Negligence. 

Many cases of the kind — Was railroad negligent?— Was the dead 
man negligent ?— If so, might railroad have avoided the accident? — 
Man on track, child, or dumb beast — Man on trestle lunatic, or 
drunken man on track — Was he a trespasser? — Whom ought engi- 
neer to see ?— An actual case of little child. 42-46. 

NUMBER EIGHT. 
Telegrams. 

When is contract closed?— Mistakes in messages— Demand in sixty 
days— Unrepeated message — Damages upon unrepeated message — 
Void regulations — Losing a good oflBce. 47-50. 

NUMBER NINE. 
Railroad Tickets. 

Ticket dropped from window — No ticket, extra fare — Allowed rea- 
sonable time to pay — Put off the cars— Railroad rules — Must provide 
seats — Amount of damages. 51-54. 

NUMBER TEN. 
Packages by Express. 

Express companies common carriers— What value? — Must disclose 
the value— Disclose frangibility— Dangerous explosives — Delivering 
packages. 55-57. 

NUMBER ELEVEN. 
Nuisance. 

What is a nuisance?— Public and private nuisances — Examples of 
public— Pig- pen — Cemetery— Livery-stable— Cotton-gin in town not 
a nuisance — Nor is a public jail — Public nuisance, remedy — Private 
nuisance, remedy— Mill-dam— Common scold — Men may be — Conta- 
gious diseases in horse, cow, etc. — Other examples — Public nuisance 
may be abated. 58-62. 



Contents, 9 

NUMBER TWELVE. 
Criminal Trespass. 

Differs from civil — Forcible trespass and wilful trespass — Wilful 
ti'espass — Protects land against squatters — Forcible trespass— On one's 
own^land — Actual possession the main inquiry —May eject an intruder 
by force— Landlord cannot forcibly put out tenant — Forcible trespass 
in the ** big road " — Care in putting anyone off land. 63-66. 

NUMBER THIRTEEN. 

The Law op Self-defence. 

General principles — Justifiable killing— Excusable killing — Mur- 
der — Legal excuses— Words will not justify blow- Self-defence — 
Slaying to prevent crime— Killing the violator of the home— Killing 
to hold prisoner— Killing a mere trespasser— Shooting a thief— Shoot- 
ing a burglar — Manslaughter— Malice— Murder, though provocation — 
Preparing the weapon — ** Pressed to wall"— Pressed to wall in willing 
fight — Apparent danger — A suggestion. 67-75. 

NUMBER FOURTEEN. 
Married Women. 

The law's favorite— Married women generally not bound by their 
contracts— Examples of the same— How can she bind her land? — 
How may she bind her personal estate?— For the support of her 
family— Time cannot run against her rights— Her husband responsi- 
ble for her fights— Nor can he correct her with switch no larger than 
his thumb. 76-79. 

NUMBER FIFTEEN. 
Divorce Law. 

King Alfred — The family the unit— Many States have loose divorce 
laws— Married in one State, not married in another— Uniform divorce 
laws— Lord Stowell's opinion— *' Carolina, Carolina, heaven's bless- 
ings attend her." 80-84. 

NUMBER SIXTEEN. 
The Statute of Frauds. 

Land cannot be bought without writing — The law 250 years — What 
is the statute of frauds ?— Promise to pay debt of another must be in 
writing— Executor's promise must be in writing — Liquor dealers* 
bills. 85-87. 



10 Co7itsnts. 

NUMBER SEVENTEEN. 
The Statute of Frauds.— Con. 

Sale of lands must be in writing— Examples— Must the considera- 
tion be in writing ?— No damages for breach of such a contract— Can 
one under a verbal agency sell your lands? — Buying land at auction — 
Judgment may be assigned by parol— Party signing bound, other 
party not— * Betterments "—Can you correct writings by parol? — 
Abandonment by word of mouth. 88-93. 

NUMBER EIGBTEEN. 
The Statute of Limitations. 

The old law— Does not run against infant, etc.— Example— Six 
months statute — One year — Two years — Book- debt oath — Three 
years— Bond and note — Six years — Seven years— Ten years— Crimi- 
nal statute of limitations — When does the statute begin? — Attorney 
and client— Mutual accounts— Unlawful conversion. 93-100. 

NUMBER NINETEEN. 
The Statute of Limitations as Applicable to Land. 

Why possession important— Eminent domain — Time builds titles — 
Twenty years possession without '* color" — Seven years possession 
under color — What is 'color of title"? — Visible lines and bounds — 
" Keep his flag flying" — Landlord and tenant — Tenants in common — 
Continuous possession — Rules in purchasing land— Rule in Ger- 
many. 101-106. 

NUMBER TWENTY. 
Notes and Bonds. 

Danger in signing notes — "A courier without luggage" — What 
''negotiability" means— Patent fence, beehive, churn notes— A hard 
case— Don't pay until you see the credit put on the note— A receipt 
unsafe—" Buying a pig in a bag." 107-110. 

NUMBER TWENTY-ONE. 
Religious Societies. 

•Property limited— The reason — Gifts upheld by law — How churches 
may sell or mortgage lands— -Trustees not individually liable— Dis- 
turbing services a crime. 111-113. 



Contents, 11 

NUMBER TWENTY-TWO. 
Fire Insurance. 

Prudent men insure— Void insurance — Avoiding the policy — Suit 
brought in twelve months — Other insurance not disclosed — Insured 
does not own the dwelling— Mortgage on dwelling — Dwelling vacant 
ten days— Former in-urance approximated — Changing insured prop- 
erty—Get the company's permission — Lightning clause — Ashes — Suit 
in a year after fire. 114-119. . 

NUMBER TWENTY-THREE. 

The Law of Partnership. 

What is a partnership?— Limited partnership— Partner without 
knowing it — Use of one's name — Silent partner — Are landlord and 
tenant partners ?— Partnership in Alliance stores— Test of partner- 
ship — Consequences of —Sometimes bound by partner's unlawful act — 
How put an end to— Death of a partner— Partner carrying on a rival 
business— Firm property cannot be used to pay individual debts — 
Secret partner — Old firm answerable for debts of new— What notice 
of dissolution necessary— Justice of the Peace cannot try partnership 
cases— Statute of limitations does not run between partners — Insol- 
vent member of solvent firm— Illustration of — Limited partnership, 
how formed. 120-126. 

NUMBER TWENTY-FOUR. 
Banks 

Individual liability — How organized — Directors — Capital stock — 
Deposits — Individual liability again — Directors may be liable — Decis- 
ions not harmonious. 127-130. 

NUMBER TWENTY-FIVE. 
Corporations. 

What is a corporation ? — How created — Advantages to the incorpo- 
rators — Individual liability — The bank breaks— National banks — 
Ought a bank be chartered without the individual liability clause ? 
131-133. 

NUMBER TWENTY-SIX. 
Lawyers. 

Duty to encourage peace— High-toned morality required— Exam- 
ples of great lawyers — Why he should defend in any case — Wife 
changes her opinion — Poorest paid of any class. 134-139. 



12 Contents, 

NUMBER TWENTY-SEVEN. 
Sunday. 

The statute — Is Sunday contract binding? — Construction of old 
law— The new statute— Can arrest on Sunday— Railroads running on 
Sunday — A suggestion. 140-143. 

NUMBER TWENTY-EIGHT. 
Inn-keeper and Guest. 

What is an inn? — Difference between inn and boarding-house — 
Whom may hotel-keeper reject?— Who is a guest ?— Rights of a guest- 
Statute law on the subject— North I Carolina has no statute— Liability 
of inn-keeper— What is baggage? — Leaving door unlocked— Pullman 
sleeper not an inn— Horses and vehicles— Injury from rats and mice — 
Can inn keeper eject guest by force?— Guest failing to pay bill— Has 
livery stables a lien? — What then is a lien?— Has boarding-house a 
lien?— Measure of responsibility for baggage — North Carolina inn- 
keepers nei^d a ''Hotel Statute." 144-149. 

NUMBER TWENTY-NINE. 
Usury. 

Eight per cent.— Six per cent.— Effect of usury— Illustrations— A 
new decision. 150-151. 

NUMBER THIRTY. 
There Being No Will. 

Personal property — Children and widow — Father — B^ stocks and 
by the head— Advancements — Presumption against gift — '* Hotch- 
pot" — Executor and administrator represent estate— Husband no 
interest in wife's lands till her death— Wife sues to recover rent. 
152-156. 

NUMBER THIRTY-ONE. 
How TO Write Your Will. 

Two witnesses necessary — Holograph will— Donatio causa mortis — 
Nuncupative wills — Marriage revokes will — After-born child — 
Witness a legatee — Lapsed legacy— Tying up property— Short w^ills— 
The law's will— Void gift to Davidson College. 157-161. 

NUMBER THIRTY-TWO. 
Justices of the Peace. 

Forms to be used by— Justices' jurisdiction, criminal cases — Aj)- 
peals in criminal cases— Cautioning the prisoner— Jurisdiction, 'civil 
causes— Jurisdiction of torts — Appeal in civil cases — Transcript on 
appeal. 162-179. 



TALK5 ABOUT LAW. 



NUMBER ONE. 



L.AW OF THE FARM. 

Landlord and Tenant. 

North Carolina is chiefly concerned with agriculture. 
Therefore ray first talks will be abouti the law of the farm. 
In our Code this is called the Landlord and Tenant Act. 

Now we all know that when a man rents his land to 
another, all crops made on the land are deemed to be in 
the possession of the landlord until (1) all rents are paid, 
(2) the advances are paid, (3) all the stipulations of the 
renting are performed. 

Has Landlord Always First Lien ? 

Some practical questions arise in this connection. Sup- 
pose that in May, 1892, a merchant sells the tenant two 
tons of fertilizer with which to make the crop ; takes a 
chattel mortgage on the same, and has the mortgage 
registered. Suppose that, after May, 1892, the landlord 
advances meat and meal to the same tenant. At the end 
of the year there is not crop enough to pay both. Which 
loses, the merchant with his mortgage registered before 



14 Talks About Law — No, 1. 

the supplies were advanced, or the landlord ? The statute 
provides that the lien of the landlord shall be ahead of 
all others, so he will be paid first. 

Tenant Neglecting Crop. 

Again, suppose that, near the end of the year, the tenant 
neglects the crop after it is made, suffers it to waste, and 
does not house it. What remedy has the landlord ? As 
the statute provides that the landowner has title to all 
crops, it would occur to anyone that he might seize the 
same at any time. 

When Landlord May Seize Crop. 

But, in the above circumstances, our courts have held 
that the landowner (5annot seize the crop before the ^nd 
of the year, if by agreement his rent is not due till then. 
But if no agreement is made as to when rents are due, in 
the circumstances above set forth, the landlord can seize 
the crops in November or December, or perhaps earlier. 
Quite an interesting little case occurred down in Edge- 
combe a few years ago. 

Has a Merchant Lien on an Abandoned Crop? 

F. M. Leigh owned a tract of land. Van Riddick 
became the cropper of Leigh. Van Riddick wanted some 
advances to make the crop, so he executed, in January, an- 
agricultural lien to a merchant named Thigpen. In June 
the crop "got in the grass." So Van Riddick gave it up 
and left. 

Mr. Leigh, the landlord, then said to Thigpen, "You 
had better have Riddick's crop made, or you will lose your 



Law of the Farm, 15 

debt." Thigpen replied, "You go ahead and cultivate 
the crop, pay yourself rent and advances and expenses, 
and pay me the balance." " If I do, you shall not have 
one cent." "We will see," says Thigpen. 

Leigh, the landlord, did cultivate the crop, and after 
paying his rent and all the expenses, the sum of fifty dol- 
lars was left over. Now who was entitled to it? 

The Court held that the merchant got nothing. For, 
Thigpen had only the right to have his advances paid out 
of Riddick's share of the crop. But Riddick had no 
share, so Thigpen had nothing. 

Tenant Guilty of Misdemeanor. 

If the tenant removes any portion of the crop from the 
land without permission, without giving the landowner 
five days' notice, and not having paid the rent, he is liable 
to a criminal action. 

Landlord Guilty of Misdemeanor. 

So also if the landlord unlaw^fuUy, wilfully, knowingly, 
unjustly and without process of law, seizes the tenant's 
crop, when the tenant owes nothing, he may be indicted? 
Appealing to the criminal law is not, however, pleasant. 

Purchaser of Crop From Tenant Liable to Landlord. 

Besides, the landowner has a still better remedy, of 
which he is doubtless not aware. Let us see. Down in 
Pitt County, in 1879, a Mr. Belcher rented his land to one 
Butts. Belcher the landlord, and Butts the tenant, had 
the cotton ginned and baled. One bale was sold by con- 
sent of Belcher. The other bale Butts sold without Bel- 



16 Talks About Lam — No, 1. 

cher's consent to a merchant named Grimsley. Now Mr. 
Grimsley did not know, when he bought and paid for the 
cotton, that Butts owed Belcher and that Belcher had any 
lien on the bale of cotton. Belcher demanded the cotton 
of Grimsley, and finally sued him. Mr. Grimsley said : 
"I bought the bale of cotton in the open market, just as 
I had bought hundreds of other bales. I did not know 
that Mr. Belcher had any lien on the cotton." It matters 
not, said the Court. It is a question of title, and Belcher 
has the title. Caveat emptor^ let the purchaser beware, 
applied with full force to that case. 

So Warehousemen Liable. 

In our tobacco counties much tobacco is sold by tenants, 
and sometimes without the landlord's consent. In all such 
cases the warehouseman or purchaser is responsible to the 
landowner for all tobacco sold. 

My next paper will speak of the reciprocal legal duties 
and responsibilities of the landowner and his laborers, or 
"hands." 



Farming Contrdcts, 17 

NUMBER TWO. 



FARMING CONTRACTS. 

Seizing last Year's Crop for Rent. 

Often, at the end of a bad crop year, the landlord, for 
compassion's sake, or out of prudential considerations, will 
not collect all his rents and advances. To do so, would 
leave nothing for the tenant's family to " go on " during 
the next year. So a bargain is struck that the tenant 
may keep his corn and wheat and use the same to assist 
in making another crop. 

Can the landlord hold this year's crop to pay last year's 
rent? 

This is a question often arising and not settled until the 
year 1890. At that time a case arose from Edgecombe 
County involving this question, and our Court held that 
the landlord could hold this year's crop with which to pay 
last year's rent, if it was a part of the contract of renting 
for the new year. 

'* Hands." 

Just at this time of the year farmers are likely to have 
much trouble with their " hands." The crop season is 
now well advanced. Wages are higher in May and June 
than they were in February and March. The "hand" 
who made a bargain to w^ork all the year 1892 at nine 
dollars a month is dissatisfied now because day labor is 
in demand at fifty cents a day. Doubtless he forgets the 
2 



18 Talks About Law— No, 2. 

cold weather, when he was warmed and housed and fed 
and paid for doing little or nothing. 

So the all-important agricultural question arises, " If 
the hand hires for the year at so much a month and 
leaves, without excuse, before the end of the year, can he 
recover for the work actually done " ? Not to obscure the 
point, we will first answer the question, "Yes." 

Breach of Contracts. 

And now we proceed to trace the development of the 
legal principle out of which has grown the doctrine laid 
down above. By the old law, if a person, of his own 
volition, failed to complete a special contract, he could 
not recover for the part actually performed. Let us illus- 
trate by an old and very familiar case. 

On July 31st, 1793, a sailor named Cutter went on 
board a ship at Kingston bound for Liverpool. Powell, 
the captain, gave him a note for his services which read 
as follows: "Ten days after the ship. Gov. Parry, myself 
mate, arrives at Liverpool, I promise to pay to Mr. T. 
Cutter the sum of thirty guineas, provided he proceeds, 
continues and does his duty as second mate in the ship 
from hence to the port of Liverpool." Cutter performed 
his duty until the 20th of September, about one week 
before the ship arrived at Liverpool, when he died. The 
ship refused to pay his personal representative anything. 
Suit was brought. The Court held that the defendant 
was not liable, not even for the work done. Now this 
was a "hard case," but it did not prove a "quicksand." 

About twenty years ago a case arose in Wilmington in 



Farming Catitracts, 19 

which ourConrt said that the rigid rule of law expounded 
in Cutter against Powell ought to be relaxed, and that 
the party ought to pay such remuneration as the benefit 
conferred is really worth. 

This idea having gained lodgment in the minds of our 
Court, has been often recognized since. Doubtless, a 
recollection that "rigorous law is often rigorous injus- 
tice " induced the departure. 

'* Hands'' Leaving. 

Finally, in 1886, this case came up from Hertford 
County. Mr. Baker employed Webster Chamblee, for 
the year 1885, at ten dollars a month. Webster left in 
September, 1885, without excuse. At that time he had 
been paid twenty dollars, and if he was entitled to recover 
at all, seventy dollars was the amount due him. Baker 
suffered no damage because Webster left. Our Court 
held that Webster was entitled to seventy dollars. "If," 
sa}^ the Court, "by the terms of the contract, certain 
sums are due on the performance of certain parts of the 
work, separate actions are maintainable for each. And 
though the contract and consideration be entire by the 
apparent terms of the agreement, yet such may be the- 
circumstances as to entitle the plaintiff to a ratable com- 
pensation for part performance. 

" So the inference is that compensation is payable weekly 
or monthl}'', unless there is a clear and distinct under- 
standing that compensation as a unity isdemandable only 
at the expiration of the full period of service." 

This principle is approved by the Court in another case 
of very recent date from Vance County. 



20 Talks About Law— No. '2, 

How to Contract with Hands. 

So that the farmer can only protect himself against 
those hands who would leave him in the grass, by making 
a contract for the year and stipulating that " the wages are 
due and payable at the end of the year as a unit and not 
otherwise." And when he pays the hand anything during 
the year, he must take a written receipt " that the pay- 
ment is not intended to change the terms of the bargain 
or to recognize the divisibility of the contract." 

Much has been said about making it a misdemeanor for 
a hand, wilfully, unlawfully and without excuse, to leave 
his employer. Indeed, it was thought that Section 3119 
of The Code did in effect so provide. But it plainly does 
not, as was held in State v. Daniel in the year 1883. As 
to whether such an act, if passed, would be constitutional 
or even expedient, is a question for the Legislature. 



Enticing Servants, 21 

NUMBER THREE. . 



ENTICING SERVANTS. 

The peace and good feeling of a neighborhood is often 
disturbed because one neighbor charges another with inter- 
fering with his laborers. 

Certificate of Character. 

In some places, when a servant is discharged, he cannot 
get employment elsewhere without showing a certificate 
from the late employer. This rule applies in thickly set- 
tled neighborhoods and in cities generally. 

With us in the country, we have to do the best we can 
and rely on neighborly conduct. The ladies often say 
that if the men would take the matter of domestic ser- 
vants in hand and would form a society agreeing to pay 
good wages to good servants, and not to employ such as 
steal extensively and are indifferent, this perplexing prob- 
lem would be solved. But I fear not. Good domestic 
service, like most good things in this life, is a growth. 
The new order of things has not yet had time to develop. 

Wbat the Statute Says. 

The statute protects us, however, against interference 
with our servants. 

Eirst, if any person shall entice, persuade and procure 
any servant to unlawfully leave his employer; or 

Second, if any person shall knowingly and unlawfully 



22 Talks About Law— No, 3. 

harbor and detain from the service of his employer any 
servant who shall unlawfully leave the service of his 
employer — in either case the person so oflfending may 
be fined one hundred dollars, or imprisoned six months 
in jail. 

Illustrations of Enticing Servants. 

In Person County, about the year 1870, two neighbors, 
Haskins and Koyster by names, went to law because Has- 
kins charged Royster with interfering with his servants, 
and before the suit ended, they say that it cost the defend- 
ant nearly his entire estate. 

A year or two ago a Norfolk firm had an agent who 
went to Goldsboro and hired many of the servants of a 
rival machine factory, saying, at the time, that he intended 
to break the Goldsboro factory up. 

Our Court said : " The mischief which the enactment 
was intended to remedy was the interference of others 
with the servants, who had thus agreed to serve, by offer- 
ing them inducements to depart, or with knowledge that 
they had so departed in disregard of their contract obli- 
gations, by receiving such into their service." 

Minors not Bound Unless Parents Contract. 

In 1889, in Lenoir County, one Moses Anderson was 
indicted for persuading Lloyd Anderson to leave the ser- 
vices of his employer. The employer swore that he had 
paid Lloyd for several months' labor in advance, which 
he did not get. Bat Moses contended that Lloyd was his 
son, that he did not agree to the contract of hiring, and 



Enticvug Servants, 23 

that Lloyd was under age. Our Court said that, under 
these circumstances, Moses was not guilty. 

In Perquimans County, in 1883, one Daniel, the servant, 
was indicted for unlawfully leaving the service of his 
employer. It will be observed that there was no enticing 
or persuading in the case ; Daniel simply left his employer 
in an unlawful manner. Our Court said that Daniel was 
not guilty under the statute. 

North Carolina Labor Best. 

Since that time the Legislature has had under advise- 
ment the passage of an act to make it a misdemeanor for 
any servant to unlawfully and wilfully leave the service 
of his employer. Such a law exists in States to the south 
of us, I have heard. If our labor is often poor and pro- 
voking, let us take courage when we read of Eus^ian 
anarchists and foreign Nihilists, and let us be patient and 
abiding, not quick to fly to dangers we know not of. 



24 Talks Ahout Law— No. 4- 



NUMBER FOUR. 



FIXTURES. 

Questions Asked. 

What is a fixture ? For our purpose we will say, " A 
personal chattel affixed to real estate which may not be 
removed against the will of the owner of the land." 

A tenant purchases and attaches tobacco flues to his 
landlord's barn. Are the flues fixtures? A mortgagor 
puts a new engine in the mortgaged mill. Is the engine 
a fixture? A man sells his farm. When the purchaser 
comes to take possession, the vendor claims all the apple 
and peach trees. Are they fixtures? 

The landlord forbids the tenant removing manure raised 
during the year. Is manure a fixture t 

Fixtures, as between Landlord and Tenant, Mortgagor and Mortgagee, Etc. 

This term "fixtures" has a different meaning in its 
application to different parties — as vendor and vendee, 
mortgagor and mortgagee, heir at law and executor, land- 
lord and tenant. The right to remove and detach is 
recognized as between landlord and tenant when it would 
not be between the other relations. 

TlieTest of a Fixture. 

The public are disposed to make the actual affixing of 
the chattel to the freehold, rather than its use and the 
relationship existing between the parties, the test of a fix- 
ture. Xor is this popular mistake entirely without sanc- 
tion in the early opinion of some of the judges. 



Fixtures. 25 

And here again we may pause to observe that progres- 
siveness is not more the law of life than it is the life of 
law. 

"Anciently," say our Court, "the law was more strict 
in respect to making things erected upon and attached to 
the land, directly or indirectly, a part of the freehold, 
than in modern times. As civilization has advanced and 
trade and other industries have multiplied, there has been 
a growing relaxation of the strict rule of law in their 
' favor." Generally speaking, any tenant, at the end of 
his tenancy, may remove any addition that he has made 
to the land from his own funds and in furtherance of his 
business. 

Sometimes a House not a Fixture. 

Some years ago the Western N. C. E. E. obtained per- 
mission to erect a ticket office on the lands of another. 
After awhile the Eailroad was moved. It demanded the 
house. The landowner said "Not so, it is a fixture." 
But the Court held that it was not a fixture. This was 
between landlord and tenant or lessor and lessee. 

How About an Engine and Macliinery? 

Now let us see as between a vendor and vendee of land. 
In Mecklenburg County in 1877 Davis sold certain mining 
property to Vallentine. Vallentine bought an engine and 
machinery, affixed the same to the land, to test it. Davis 
then became bankrupt and was sold out. Moore bought 
the mining lands at public auction. Moore claimed the 
engine, etc. So did Vallentine. The Court was called 



26 Talks About Law— No. i. 

on to say if they were fixtures, and held that they were, 
because of the relationship of vendor and vendee. Says 
the Judge : " Where a mortgagor or vendee makes im- 
provements and erects fixtures, he does so for the purpose 
of enhancing the value of the property, and having made 
this addition to the land, he is not at liberty to subtract 
it on the ground that by his own default he is not able to 
get the title. Such is not the law. When a tree is 
planted, or a house is built, or a steam-engine is annexed 
to the soil and is used as a part of the freehold, it becomes 
a part of the land and cannot be severed except in special 
cases." 

Are Loose Plank on Floor Fixtures? 

So our Court has held that, as between vendor and 
vendee, a plank, which was put down and used as a floor 
in a gin-house, was a fixture, whether nailed or not. Had 
the plank been laid down to dry, or for safe-keeping, it 
w^ould not have been a fixture. 

We are now, perhaps, ready to answer the questions 
suggested in the beginning of this article. 

Tobacco Flues. 

If a tenant buys tobacco flues and attaches them to the 
barn in the usual way, at the end of the year they are the 
tenant's. 

If the mortgagor or vendee does the like, the flues 
become fixtures and cannot be removed by him. So, on 
the death of a party, the flues in his tobacco barn, no 
doubt, go to his heir and not to his administrator. So, if 
a mortgagor or vendee puts in an engine in the usual way, 
it is a fixture. 



Fixtures. 27 

Fruit Trees. 

Fruit trees are fixtures, and no doubt cannot be removed 
though planted by him. 

Manure. 

A tenant will be entitled to all the manure that he 
raises from his stock, provided he removes it before he 
leaves the premises. After his term has expired and he 
has left the land, the law would presume that he had 
abandoned the manure and he could not get it. But even if 
the tenant unlawfully hold over after his term has expired 
he is still entitled to the manure. He loses his right to 
the manure only by leaving the premises after his term 
has ended without removing the manure. 



28 Talks About Law— No. 5. 



NUMBER FIVE. 



SOMC DAMAGE CASES. 
Smith on Contracts. 

John William Smith, an Englishman, has written a 
favorite law book on the subject of contracts. In style 
it is simple and easy, but it is accurate, very clear and 
strong. One, not a lawyer, can do no better than to 
read it. 

He says that if we except the law of real property and 
of crime and causes, then arising in the Court of Exchequer, 
the whole practice of our courts of common law may be 
distributed into two classes, contracts and to^'ts. He then 
proceeds to treat of the former ; while we will, in a modest 
way, consider some principles underlying the latter. 

What l8 a Tort ? 

A tort is a civil wrong or injury. To speak generally, 
wherever there is a wrong the law provides a remedy. 
The amount recovered is spoken of as damages. 

Without seeking to classify, let us begin in the middle 
and illustrate by cases determined by our courts. 

Suck-Egg Dog. 

Dodson owned a dog that he considered valuable. One 
Mock, a neighbor, raised sheep and poultry. Dodson's 
dog sucked one of Mock's hen's eggs, and caught one of 
his sheep. Thereupon Mock shot and killed the dog. 



So7ne Damage Ca^ea, 29 

Dodson sued Mock for damages for killing the dog. Mock 
set up as a defence the facts above. But the Court, Judge 
Gaston, said that it was no justification ; and so Dodson 
recovered damages. The Judge remarked that " it is not 
denied that a dog may be of such a ferocious disposition 
or predatory habits as to render him a nuisance to the 
community, and if suffered to go at large may be killed 
by any person." 

But Judge Pearson, in a later case, questioned this last 
exposition of the law. 

Sbeep-kiiling Dog. 

But in a case that occurred about the same time, the 
Court held that if a man kill a dog that had destroyed 
two of his sheep and is prowling around to kill others he 
is not answerable in damages. " It hath always been taken 
for the law, that a sheep-stealing dog, found lurking about 
where sheep are kept, incurs the penalty of death." 

Judge Pearson's review of Judge Gaston no doubt 
had much to do with the passage of our present statute, 
which makes the owner of a sheep-killing dog indictable, 
if he knows that the dog kills sheep and then lets it run 
at large. So that this question is set at rest. 

Cbicken-Eating Sow. 

But the question of the right of a man to kill a chicken- 
eating sow is still an open one. In the year 1858, in New 
Hanover, Mr. Nixon was the owner of a fine brood of 
chickens. Mr. Morse owned a sow that had been known 
to eat one chicken and to chase another. One fine morn- 



30 Talks About Law— No, 5. 

ing Mr. Nixon saw the old sow prowling around near his 
fence, where his chickens usually ranged, and his patience 
being threadbare he shot and killed the sow. 

Eesult: Morse sued him for damages. The Judge below 
charged the jury that if they believed the sow was of a 
predatory character and had the reputation of a chicken- 
eating hog, the defendant had the right to kill her. 

Up went the case to the Supreme Court. Our highest 
Court said that the Superior Court was in error. They 
say that the position that a chicken-eating hog is a public 
nuisance and can be killed by any one, would lead to 
monstrous consequences; and they further hold that what's 
law for the dog is not law for the hog. At all events, a 
new trial was granted. 

Back went the case again. This time new evidence .was 
otfered. It appeared that the old sow was seen with 
Nixon's duck in its mouth. Nixon chased the sow. She 
dropped the duck. Then the sow "put out" after the 
duck again, and, while in hot pursuit, Nixon shot and 
killed the pest. 

Still the lower Court, taking the cue from Judge Pear- 
son, charged the jury that the defendant was not war- 
ranted in killing the sow. This time the defendant 
appealed, and he got a new trial, and the case went back 
again ; the books do not say if the case ever ended. 

May Kill Sow to Save the Duck. 

But the law was and is settled, and is this : The owner 
of the duck had a right to shoot and kill the sow, if it was 
necessary to do so, to protect the duck. The knowledge 



Some Datnage Cases, 31 

that the owner of the sow had of its bad qualities ought 
to have induced him to keep her up, and if she was killed, 
it was in consequence of his own default." " Darnnum 
absque iryuria^'^ as the law Latin has it. 

Vicious Bull. 

So much for dogs and hogs. But how about a vicious 
bull? In 1850 John Nixon's bull gored Joseph Cocker- 
ham's horse. Nixon was sued to recover damages. The 
Court say that if Nixon knew that the bull was vicious 
and turned it loose, he was responsible for all damages 
that the bull did. 

Bad Bridges. 

How about injuries sustained in passing over bad bridges 
and roads? Suppose that a wagon and team break through 
a bad county bridge and the team are drowned and the 
wagon lost, who pays the bill ? No one, at all. . 

But if it is a town or city bridge you get full damages. 
The distinction is this: Towns and cities are granted 
unusual privileges about markets and police and fires and 
other things, and so they must be very careful. Down 
in Newbern last year a gentleman fell on a sidewalk 
and broke his arm. He sued the city and claimed that 
he fell because of the city's negligence in letting fish-scales 
and slime stay on the sidewalk. The jury took this view, 
and he recovered five hundred dollars; which our Court 
said, on appeal, was right. 

Fireworl(8. 

How about horses running away because of unusual 
noises and sights, such as drums and fireworks? and how 
about injury to people from the discharge of fireworks? 



32 Talks About Law— No, 6. 

Two neighbors in Boston, a few years ago, were cele- 
brating with the Grant Club. Each stood in his own 
house. One shot Roman candles and the other sky-rockets. 
The stick of one sky-rocket accidentally put out the eye 
of the neighbor's boy. Suit for damages, and damages 
recovered. 

In Massachusetts and in New York it is held, and 
North Carolina would no doubt so hold, that the whole 
business of exploding crackers on the streets on any day 
is unlawful. 

Frightening Horses with Drum. 

In 1825 in this State a boy beat a drum and caused a 
horse to run away, and the owner recovered damages. 

But it is to be remembered that one has the right to 
pursue his usual and lawful occupation in the usual way, 
and if a horse take fright and do damage on account of 
it, the law gives no damages to the owner. 

With Elephant. 

Once upon a time a man's horse took fright at the 
elephant belonging to a circus which was traveling along 
the highway. The horse ran and destroyed its owner's 
buggy. But the Court said that an elephant had a right to 
the public road, and that if the elephant behaved himself 
and was properly driven, no damages were recoverable. 

With Military Company. 

For example, if a military company were drilling, and 
it were necessary to beat the drum and play the fife, 
horses must not interfere. So if a horse is frightened and 



Sonie Damage Cases. 33 

runs away because the railroad engine blows for the sta- 
tion, or for any other necessary purpose, the owner can 
get no damages. 

With Railroad Engine. 

But if the railroad has its cars at an unusual and unnec- 
essary place, and thereby the horse is frightened and does 
damage, the owner has a good cause of action. For 
example. Dr. Hassell, one day in 1890, was going out of 
Williaraston, riding in his buggy. A box car was not in 
its usual or proper place, but projected two feet at a bridge 
at a public crossing. The Doctor's horse took fright, ran 
away, smashed the buggy and injured the Doctor. The 
jury gave him five hundred dollars damages, and our 
Court said that it was right. So if the engine blows in 
order to frighten the horse, the railroad is liable. 

Produce Burned on Railroad. 

Suppose that a farmer has cotton to ship. He carries 
it to the depot and leaves it, and says to the agent that 
he will get his bill of lading in a day or two, and, before 
he gets it, and before he tells the agent where the cotton 
is to be sent, it is burned, whose loss is it ? Not the rail- 
road's, if they have used ordinary care in keeping it, for 
they are not yet common carriers. But if the bill of 
lading is given out, and the relation of common carrier 
exists, then the railroad would be responsible for the loss. 
This case has just occurred in our State. 

Railroad Failing to Ship In Time. 

Again, suppose that you have some fine hogs or poultry, 
and you go to the city and engage to sell them for a fancy 
3 



34 TalTcB About Law — No, 5, 

price. You put them on the railroad and ship them to 
the purchaser, and they are lost or destroyed, what dam- 
ages do you get, the mafrket value of the property, or the 
price at which you sold them ? Well, this depends. If 
you have told the railroad that you have sold the property 
to be delivered at such a time and at such a price, and 
they fail to deliver as agreed, you recover as damages 
the amount that you were to be paid ; but unless you 
make such a contract with the railroad, your damages 
would be the market price. 

Cars not Stopping at Depot. 

, A very funny case occurred at Haw River in Alamance 
County a year or two ago. Several parties made up theiir 
minds that they would go and see the circus to be held at 
Hillsboro. So they went to Haw River and bought rail- 
road tickets to Hillsboro. The train came along, and 
being already full of passengers gave Haw River the 
"go-by." 

The disappointed circus goers took the matter into 
court, where it was decided that the railroad must not 
only pay damages, but if it had notice of the unusually 
large crowd, and wilfully, negligently and carelessly failed 
to make provision by putting on additional coaches, the 
parties were entitled to punitive damages, and the rail- 
road paid about seven hundred dollars, it was reported. 

Punitive Damages. 

Let us see a moment what is meant by this word " puni- 
tive." Whenever, generally speaking, an injury is done 



Some Damage Cases, 35 

to your pprson, in a wilful, careless and grossly negligent 
way, the law says that you may have not only compensa- 
tory damages, but that the guilty party must be made to 
suffer punishment for his bad conduct. 

For example, if a railroad conductor unlawfully puts a 
passenger oflf the cars, and suit is brought against the 
company to recover damages for the act of the conductor, 
an important inquiry would be, "' How did the conductor 
deport himself in putting you oflf?" 

If he was careless and insulting and blunt in his man- 
ner, and did you more violence than was necessary, the 
company would have to pay vindictive or punitory dam- 
ages. But if he behaved himself in a becoming manner, 
with no carelessness or malice or recklessness, the damages 
would be only enough to compensate you for your loss. 
Of course, if you were in the wrong, that is to say, had 
no ticket, or no proper ticket, or were behaving in such 
a w^ay as to be a nuisance and were put oflf, you would get 
no damages. 

Tailing to Deliver Telegram. 

A year or two ago a man named Young sued the tele- 
graph company to recover punitive damages. They had 
greatly wounded his sensibilities, he claimed, by not 
delivering a telegram in time, and he was not able to be 
present at the death-bed of his wife. 

The Court said that if the company was really careless 
in delivering such a message, it was a case for punitive 
damages. But the funny part of the matter was that 
Young dropped his suit because the telegraph company. 



36 Talks About Law — No, 5, 

before the second trial, found out that Young had wife 
No. 2 living when wife No. 1 died. The jury would, no 
doubt, have thought that he had no sensibilities to hurt. 

Machinery Does not Arrive on Time. 

If a mill-owner order an important piece of machinery, 
and it does not come according to contract time, damages 
may be recovered ; but not anticipated profits on the mill 
if the machinery had arrived in time. These would be 
speculative damages. "A reasonable rent and insurance 
during the period of suspension, in addition to supplying 
the defective parts of the machinery," would be the 
measure of damages, say the Court in the leading case of 
Boyle V. Reeder in 1st Iredell's Law. 

Bad Fences. 

In Moore County, in 1879, Roberts and Cole were neigh- 
bors and had a division fence, which they agreed should 
be kept up in this way : Roberts to repair his separate 
half, Cole his half. Cole failed to keep up his half, and 
stock ate up Roberts' crop. Suit for damages. What 
was the measure, think you ? Profit on the crop if made? 
No. This \vould be speculative. It would be the cost of 
repairing the fence and such sum as would pay the dam- 
age done the crop when Roberts first discovered the injury. 
You see a man cannot "make" damages for himself. If 
he can prevent further loss, it is his duty to do so. 

Selling Liquor to Minor. 

But we must conclude with a damage case for selling 
liquor to a minor. If a liquor seller do this, the boy's 



Some Damage Cases. 37 

father, or his guardian, if the father be dead, can sue the 
liquor seller, and by our statute he can recover, not only 
what damage the liquor has done the boy, but also dam- 
ages by way of punishment, which shall not be less than 
twenty dollars in each case, and may be five thousand 
dollars. In some States the law makes the liquor seller 
liable for all the injury that any drunken man does while 
drunk with that particular dealer's intoxicants. But we 
have no such statute in North Carolina. 



38 Talks About Law— No, 6. 



NUMBER SIX. 



ACCIDENTS FROM SPRING-GUNS, STEEL-TRAPS, 
DANGEROUS MACHINES, ETC. 

It is a maxim of the law that one shall so use his own 
property as not to injure another. 

Spring-Gun. 

Suppose that a man, being worried by trespassers, should 
set a spring-gun, and that some one should be injured 
thereby, would the injury be actionable? In a case simi- 
lar to the above, that arose in England, the Court said 
'' that as such weapons are calculated to produce great 
bodily harm to innocent persons (for many trespassers are 
comparatively innocent), it is necessary to give as much 
notice to the public as you can, so as to put people on 
guard against their danger." 

So, that it may not be doubted that if one set a spring 
gun, with no notice of his intention so to do, and an inno- 
cent person be injured, he may recover on account of the 
injury. 

Spikes in Trees. 

So, in another English book, we read that a landowner 
placed sharp spikes into trees in the lane of the hare 
paths, at such height that dogs would be injured in run- 
ning against them. Plaintiff did not know of the spikes. 
His dog jumped a rabbit and ran it towards the dangerous 
ground. Plaintiff did all he could to stop his dog. But 



Accidents frora Spring-Guns^ Etc. 39 

the dog, being fonder of sport than of obedience, ran into 
the woods and was killed by a spike. 

Suit was brought to recover the value of the dog, and 
was won. 

Spring-Gun In Dwelling. 

But if guns were set in a dwelling-house to protect 
against burglars in such a way as not to shoot in the 
direction of a public thoroughfare, one would doubtless 
be not answerable in damages for shooting another if he 
let his usual visitors know the fact that he had set such a 
gun, and if, besides, he placed the gun in such a position 
that it would ordinarily shoot only such persons as were 
engaged in some unlawful entry; through the window, for 
example. " The general doctrine is that spring-guns and 
traps, placed by one on his own premises, but to the dan- 
ger of others, are a nuisance." 

As to Trespassers. 

In this connection it is material to inquire if the injured 
party be a trespasser. If he is a trespasser on the lands 
of another, that is to say, if he is on the land without 
permission or authority, and is injured by defective 
machinery, or by falling in an old well improperly cov- 
ered, or because of the owner carrying on any business 
in which he had the right to engage, in all such and like 
cases the intruder can recover no damages. To entitle 
the intruder to recover in like circumstances, it must appear 
that such contrivances were placed on the premises with 
an actual or constructive intent to hurt. 



40 Talks About Law— No, 6. 

No Admittance. 

The principle here laid down is one of importance to 
men owning lands or owning machinery. And in this 
connection the sign usually posted at the door of a 
machine-shop, "No Admittance," stands the owner in 
good stead when intruders are injured, because they have 
due warning to keep out. 

Defective Macliinery and Otiier Cases. 

In a recent case, reported in the 111th North Carolina 
Eeports, the authorities are fully cited and the principles 
in cases of this kind considered. It is a well settled prin- 
ciple, says the Court, that a landowner has a right to the 
exclusive use and enjoyment of his premises, and that he 
incurs no liability for injuries caused, by its unsafe condi- 
tion, to a person who was not at or near the place of the 
accident by lawful right, and when the owner has neither 
expressly or by implication invited him there. In a New- 
York case, a man went on the land of another to seek 
employment, and while there was injured by defective 
machinery. Even in this case no damages were given. 
So also where a man, who was employed to watch certain 
grounds, where excavating was done, took part in the lat- 
ter work and was injured, it was held that he, being an 
intruder, could get no compensation therefor. 

Chicliens in tlie Garden. 

Another class of cases often arises. Two good neigh- 
bors will lose their tempers and strain their friendship 
because the chickens of one scratch up the garden or 



AcddenU from Spring- Gtma^ Etc, 41 

wheat-field of the other. The owner of the garden will 
set a steel-trap, or drop poisoned food, or openly use the 
shot-gun, and thus put the disturbing element out of the 
way. For this he would be answerable in damages. And 
when sued he could not set off so many bushels of wheat 
destroyed against so many chickens killed. The appeal 
must be made to Caesar. It was the duty of the garden 
or wheat-field owner to sue the man having the chickens 
for damages in scratching up the seed. And each time 
the injury is repeated, to sue again and again. After the 
injury became to be wilful, perhaps the offending party 
might be arrested. I once tried a man charged with 
the criminal offense of poisoning chickens by dropping 
poisoned wheat in his wheat-field. The defendant claimed 
that much injury had been done him by the chickens ; but 
this plea did not avail him, and he was convicted. 

Usually a few kind words, a little patience, and much 
forbearance settles all such cases better than the stern 
mandates of the law. But sometimes one old hen and a 
brood of chickens will sever the oldest friendships ! 



42 Talks Ahout Law—No, 7, 



NUMBER SEVEN. 



CONTRIBUTORY NEGLIGENCE. 

Many Cases of the Kind. 

Never, perhaps, in the legal history of North Carolina 
has the subject of contributory negligence received so 
much attention as within the past few years. The reason 
can, no doubt, be found in the fact that there are many 
more corporations in existence than ever before, more 
machinery is in use, more accidents occur, and more 
damage suits are brought. 

In such suits, sometimes, two questions arise for the 
jury to pass upon: first, was the defendant negligent? 
and second, was the plaintiff guilty of contributory neg- 
ligence ? 

Was Railroad Negligent ? 

A man is walking over a railroad bridge. An engine 
and cars rush by. He is killed. Can his personal repre- 
sentative recover damages because of the killing? 

Now, this will depend, if the railroad is negligent, upon 
whether it might have avoided the accident, notwith- 
standing the negligence of the trespasser, as we shall 
presently see. 

If the jury should find that the accident could not have 
been avoided by the railroad, the plaintiff would get no 
damages. But if the jury should find that the railroad, 
itself negligent, might have avoided the accident, not- 



. Contributory Negligence. 43 

withstanding the negligence of the deceased, damages 
would be recovered. 

Was the Dead Man Negligent? 

Perhaps the railroad was negligent ; but perhaps also 
the deceased was a contributor to his own injury. That 
is to say, the deceased was a trespasser; he was on the 
bridge of the railroad ; a notice, posted at the bridge said, 
"Keep off this bridge"; and so, of his own head, he 
brought about his own death ; or, knowingly, took his 
chances. 

To this the representative of the deceased replies: 
" Even if the deceased was negligent, still the railroad 
might have avoided the accident." 

If 80, Might Railroad have Avoided the Accident ? 

So it is seen that a third question generally arises: 
"Despite the contributory negligence of the deceased, 
might the railroad have avoided the accident?" This is 
the vexed question. 

Some cases are plain and simple. For example : a train 
of freight cars is standing at the depot. A man comes 
along and, being in a hurry, does not walk around them, 
but attempts to crawl under. The cars are moved, and 
he loses his leg. 

Now, was the railroad negligent? Perhaps so, because 
it did not ring the bell or blow the whistle when it started, 
and stood across the street longer than the law permits. 
Was the plaintiff guilty of contributory negligence? Yes, 
he knew it was dangerous to crawl under the cars. But, 



44 Talks About Lww—No. 7. 

could the railroad have prevented the accident after dis- 
covering the negligence of the plaintiflF ? Not at all, because 
the negligence of the plaintiff was the immediate, proxi- 
mate, instant cause of the accident. And so, perhaps, no 
damage would be recoverable. But there are cases where 
the railroad sees the foolish conduct of a man and his immi- 
nent danger in time to stop the cars and prevent the 
injury. 

If they do see it, or if they ought to see it, by the law, 
and fail to see it, and the railroad itself is negligent, and 
the accident occurs when it might be avoided, the defend- 
ant is answerable in damages. 

Man on Track, Child or Dumb Beast. 

This diflFerence exists when a man is on the railroad 
track, and when a beast or a little child is. The man is 
presumed to know his danger, and the engineer does not 
have to blow or stop, except in exceptional cases, for the 
man. But a beast or a little 'child does not know the 
danger, or perhaps how to avoid it, and hence the engi- 
neer must blow and must stop, if he can, when the latter 
class get on the track in front of the engine. 

Man on Trestle, Lunatic or Orunl( Man on Tracl(. 

And even when a grown person is seen on the track, if 
the engineer discovers that he is in so dangerous a place 
that he cannot escape, as, for example, on a high but 
narrow trestle or bridge ; or if the person is known to the 
engineer to be deaf, or an idiot, or lunatic, or to be 
drunk, or to be asleep on the track — in all these cases it 



Contributory Negligence, 45 

is the duty of the engineer to use every effort, consistent 
with the safety of his train, to stop and avoid the acci- 
dent. And if he fail to do so and the accident occur 
through the negligence of the railroad, it is a case for 
damages. The law being humane says, you must not 
take human life, although the person foolishly expose 
himself to danger. You must use every means that is 
provided to avoid accidents of this kind. 

Was he a Trespasser ? 

So far we have been speaking of trespassers on railroad 
tracks. Now a person who simply crosses the track of a 
railroad at a public crossing is not a trespasser. And in 
considering any question of damage, it may be highly 
important to the plaintiff's case that he was no trespasser. 

Whom Ought Engineer to See? 

There is another rule of law, and it is this: not only 
must the railroad not kill or injure a person (if they can 
avoid it) whom the engineer can see, but whom he ought 
.to see. Now, whom ought the engineer to see ? All are 
agreed that he ought to see, and ought to keep a constant 
lookout to see, persons who are using the highways over 
the railroad track at public crossings, or in cities and 
towns, or in other places where experience has taught 
him that human beings usually pass along or over the 
railroad track. 

But it is contended that the failure of the engineer to 
see every trespasser who comes on the track at places and 
points remote from the haunts of man does not subject 



46 Talha About Law— No, 7, 

the railroad to damages when accidents occur in these 
circumstances. For example: 

An Actual Case of Little Child. 

A little child is run over and killed by the engine. The 
jury find, first, that the little child, or its mother, was 
guilty of contributory negligence; that the railroad was 
likewise negligent ; and, lastly, that the accident might 
have been avoided by the defendant, notwithstanding the 
child's negligence. The engineer states that he did not 
see the child. The point is, "Ought he to have seen it 
at all hazards ?" It was a level, clear track ; it was a fair 
day, and the child might have been seen five hundred 
yards away. The railroad says : " You were a trespasser, 
and my duty does not require that I shall keep a con^ 
stant lookout and actually see everything that happens 
on the track in cases of this kind. I stopped just as soon 
as I saw the child. Hence, I did my duty." 

This is a real case that occurred in Northampton 
County (except that the child recovered). The turning 
point in the case is, if the engineer or the fireman did 
not actually see the. child, ought he to have seen itT 
and is the road answerable in damages for their failure 
to see it? When this case is decided, I will make known 
the opinion. 

Since the above was written the child won its suit. 



. . Telegrams, 47 

NUMBER EIGHT. 



TELEGRAMS. 

If a person orders any goods by means of the telegraph 
wire, this authorizes the seller to reply by wire. It is the 
agency of the purchaser. 

When 18 Contract Closed ? 

The question often arises, " When is a contract which 
is made by letter or by telegram closed ? " " Is it when 
the letter or message is received, or when the one is put 
in the office and the other is delivered to the agent?" It 
is the latter. 

Mistakes in Messages. 

Some years ago a New Orleans house wished to sell 
some Mexican dollars. A New York house, wishing to 
buy, asked the price by telegram. The New Orleans 
house replied, " Sell $50,000 at 7^." At once the New 
York house, by wire, accepted. But the wires were down, 
the message was delayed four days, and the New Orleans 
house sold all the dollars to another party. 

Mexican dollars advanced, in price; so the New York 
firm sued the New Orleans firm for damages in not com- 
plying with the terms of the contract. The Courts held 
that it was a proper case for damages, because the bar- 
gain was struck when the last message accepting the offer 
was delivered to the agent in New York. 



48 Talks About Law— No. 8. 

m 

Demand in Sixty Days. 

Telegraph companies usually have a rule that if a mis- 
take is made by the company, in the delivery of a mes- 
sage or in its proper transmission, demand must be made 
within sixty days. If demand is made of the company 
within sixty days, suit may be brought as in other cases, 
unless barred by the statute of limitations. In a recent 
case our Court has said that this regulation was reason- 
able and parties dealing with the company were bound 
thereby. " It is not a statute of limitations," says the 
Court, " but a reasonable requirement enabling the com- 
pany to enquire into the nature and circumstances of a 
mistake in, or of the delay or non-delivery of, the message 
while the matter is still within the memory of witnesses." 

Unrepeated Message. 

Some regulations made by telegraph companies are held 
to be unreasonable, and hence void. For example, one 
company had a regulation that upon a message, unrepeated^ 
no damages were recoverable, even for delay in delivering 
the message. Our Court say, in a late case, that such a 
regulation is not reasonable ; and the plaintiff, the husband 
of a wife in a delicate condition, had heavy damages 
because he was kept away by the carelessness of the com- 
pany in not delivering this message : " Father, come at 
once, mother is sick." *' Because," said he, " the physical 
pain, mental anxiety and alarm of the wife were greatly 
increased." 

Damages Upon Unrepeated Message. 

For quite a while in our State, and under various 
decisions of our Courts, it was thought that a regulation 



TeUgranis. 49 

that no damages could accrue upon a mistake made in an 
unrepeated message was not unreasonable. By such a 
message is meant one not repeated over the wires to the 
sending operator for correction. On such messages extra 
charges are made. But in a very recent case, in which a 
tobacco firm named Brown & Knott, in Oxford, sued a 
telegraph company, it was held that even that regulation 
was contrary to public policy, and void. 

In that case certain Richmond commission merchants 
telegraphed the Oxford firm that an offer of " twenty- 
seven" cents had been made on the tobacco in Richmond. 
The message, as delivered to the Oxford firm, read '' forty- 
seven " cents. The Oxford firm at once wired to Rich- 
mond to sell. The sale was effected at " twenty- seven," 
and the plaintiff sued the company for damages and 
recovered. 

Void Regulations. 

The companies often attempt to shield themselves 
against liability by setting out in the printed matter on 
the blank telegram that the company is not, in any way, 
responsible for the mistakes of its agents, and by attempt- 
ing to limit its liability, in any case, to fifty times the cost 
of the message. It is needless to say that these regula- 
tions are invalid as against public policy. If answerable 
in damages at all, the company is responsible for all the 
proximate and immediate damage flowing from their negli- 
gence and carelessness — though the amount may depend 
upon whether the importance of the message is known to 
the company. If the message, on its face, fail to disclose 
4 



50 Talks About Law — No. 8, 

its importance, that fact ought to be communicated to the 
telegraph operator at the time he takes the message. 

Losing a Good Office. 

A verj'^ interesting case against a telegraph company is 
now in our courts. A young gentleman sued a telegraph 
company for not delivering, as he claims, a message ten- 
dering him a nice office at Wilmington. The company 
denied all the above allegations. The Judge below held 
that the measure of damage under the circumstances was 
the cost of the telegram. 

One of the pretty points argued was the measure of 
damages. The defendant contended that the damages 
were speculative; how long would the office last? how 
long would the plaintiff be able to hold it? he might die, 
etc. The plaintiff contended that the damages were not 
speculative ; that the office had continued two years at 
least ; that he was still alive and fully competent, etc. 

Lawyers and doctors often speak of a pretty case. This 
is one. When decided, I will append the opinion to some 
future article. 

The case was decided against the young gentleman. 



Railroad Tickets, 51 



NUMBER NINE. 



RAILROAD TICKETS. 

Ticket Dropped From Window. 

At a late term of Iredell Court a young man sued the 
railroad company and claimed damages on this state of 
facts : He had bought a ticket from Charlotte to his home 
beyond Statesville. Before he reached Statesville, and at 
a station called Huntersville, he handed a note out of the 
car- window to a friend, but by accident dropped his ticket. 
The conductor had already punched the ticket and handed 
it back to the passenger. After leaving Statesville, the 
rule of the company required the conductor, who was the 
same man who came from Charlotte, to again call for 
tickets. 

To the call for " tickets " the passenger said : " You 
punched my ticket, and by accident I dropped it out of 
the window at Huntersville." '-Am sorry for you, my 
friend, but you must pay or get oif. It is the rule of the 
company." 

After further talk the conductor put the passenger off 
near Statesville. He sued and claimed that his father 
was sick ; he was unjustly put off ; he had paid his fare 
and ought not to be made to pay twice. 

It was held that the passenger was the custodian of the 
ticket ; that if another person found the ticket he could 
use it again, and that the young man could not recover. 



52 Talks About Lam— No. 9. 

No Ticket— Extra Fare. 

A conductor recently said to me that a rule of his com- 
pany required extra pay when a ticket was not purchased. 
That a passenger, having no ticket, had refused to pay 
the extra charge ; and the question was asked if the rule 
had been enforced, and the passenger put off, could he 
have recovered damages. 

In other States it has been held that such a rule is 
reasonable, and that unless one buy a ticket, he must pay 
extra fare or get off. Of course the railroad company is 
compelled to do its duty by having a ticket office near by 
and open in time to get a ticket. 

And in one State where a lady had been in the habit of 
paying regular fare on the cars and offered to do so 
again, and was evicted for failure to pay the extra charge^ 
it was decided that she could recover damages. 

Allowed Reasonable Time to Pay. 

Some years ago a conductor came along in one of our 
North Carolina railroad cars and called "tickets," one 
passenger had no ticket and had no money ; but he said 
to the conductor, " Let me go in the next oar, a friend 
has some of my money." But the conductor, in too great 
a hurry, put him oflf, and he recovered damages. Our 
Court said that the passenger ought to have been allowed 
a reasonable time in which to get the money. So if one 
loses his ticket on the train he ought to be allowed reason- 
able time to find it again. 



Railroad Tickets. 53 

Put Off the Cars. 

When one is put off the cars, it must be at a depot or 
near a residence. In some States it must be at the usual 
stopping-place of the cars. 

Railroad Rules. 

On the whole, it may be said that as railroads are held 
to a high degree of care and diligence in conveying pas- 
sengers, so, on the other hand, they have the right to 
make and enforce reasonable rules and regulations for the 
government of the train ; and these rules, when reason- 
able, the public must observe. 

Among such regulations would no doubt be such as 
these : " This ticket is good for this day and trip only." 
Though perhaps the company might be made to refund the 
money if ticket is not used. So a ticket from Ealeigh to 
Greensboro could not be used on a trip from Greensboro 
to Raleigh. 

Must Provide Seats. 

In a Missouri case the passenger said, '' I will not give 
up my ticket till you provide me a seat," and the Court 
said he was entitled to a seat. It is doubtful how a North 
Carolina Court would hold. 

Amount of Damages. 

With reference to the amount of damages in cases of 
unlawful expulsion from a train, this depends, as we have 
seen heretofore, upon whether the expulsion is in a rude, 
careless and insulting manner, or whether it is done in a 
kind way and with no excess of force. If the former. 



54 Talhs About Law— No, 9, 

exemplary and heavy damages can be awarded. If the 
latter, only such damages as are the immediate result of 
the act. 

Among the latter elements of damage might be lost 
time, extra hotel bills, and the cost of transportation. 

One could not recover speculative damages. For exam- 
ple, if a public lecturer were, on account of the negligence 
of a common carrier, unabl(3 to meet an engagement, he 
could not calculate that perhaps so many people would 
have come to hear him lecture at so much a head. Dam- 
ages of this kind are conjectural, generally speaking. 

But if the lecturer was under a contract to be paid so 
much for the night's lecture, perhaps the measure of dam- 
ages would be the contract price, less his expenses ; spec- 
ially so if the railroad knew of the importance of making 
the exact connection. 

AVe have all, no doubt, sued many a railroad in our mind 
and wrath, when fearing to miss an important engage- 
ment. Generally we take it out in talk, however. 



Packages hy Express. 55 



NUMBER TEN. 



PACKAGES BY EXPRESS. 

Express Companies Common Carriers. 

When a law-abiding citizen orders a dozen pretty 
cut-glass tumblers as a Christmas present for a friend, 
they come by express, he opens the package, three are 
crushed — he — well he wishes to know whom to sue! 
Strange to say, we have few cases in our State, if any, 
upon the subject of express companies. In many other 
States it has been held by the Courts that they are com- 
mon carriers, and as such, are fixed with great care and 
responsibility in the conveyance of goods. 

With express companies, as with telegraph companies, 
many regulations are made for the protection of the com- 
pany. Some of these are reasonable and valid; some 
unreasonable and invalid. 

What Value? 

We all recall the fact that when we deliver a package 
to an express agent and demand a receipt, he asks, " What 
value ?" Sometimes, to have the package go cheap, the 
sender will take his chances and say five dollars. 

If the package is lost, even by the negligence of the 
company, in these circumstances the loss recoverable 
would not exceed fifty dollars, or perhaps not exceed the 
value fixed. 



56 Talks About Law— No. 10. 

This regulation that the value shall be given, is, hence, 
reasonable, because the company ought to know what 
degree of care to exercise in transporting and guarding 
the package. 

Must Disclose the Value. 

A celebrated case arose in New York some years ago 
of this kind. A French company of importers sent by 
express a package of watches worth $2,500 to a Memphis 
firm. When the watches were sent nothing was said as 
to their value, nor could the character of the contents of 
the parcel be discovered from its outside appearance. The 
watches were lost or stolen. In a suit against the express 
company for damages the importers contended that they 
were entitled to recover full damages. " Not so," said 
the Court, " it was your duty to tell the company that 
you were expressing so valuable a package. You did not 
do so, and it is your loss." So the plaintilBfs recovered 
only fifty dollars, the limit beyond which recovery cannot 
be had unless the value is fixed above that sum. 

Disclose Frangibllity. 

So, it is the duty of one sending a package easy to 
break to communicate this fact. If the sender practices 
any fraud by concealing the value of the article, or its 
fragility, it is his own fault if he do not recover damages. 

But if no fraud is practised, and the company is made 
acquainted with the contents of the package, and under- 
take to deliver it safe and fail to do so, it is doubtless 
answerable in damages for loss and breakage. 



Packages hy Express. 57 

Dangerous Explosives. 

Some years ago a man shipped by express a dangerous 
explosive to San Francisco. It began to leak. The agents 
of the company in attempting to stop the leak caused 
the substance to explode, killing several men. Suit was 
brought against the company but it was not liable, as 
it did not know, and had no reason to suspect, that the 
package was a dangerous one. 

Then suit was brought against the shippers for not dis- 
closing the contents of the package, and they were made 
to pay heavy damages. 

Delivering Packages. 

As to the measure of care required of express companies 
in delivering packages, this varies in different States. But 
it is generally held that a simple notice by mail is not 
sufficient, but that the package ought to be delivered to 
the place of business of the consignee. 

Benjamin Vaughan Abbott has collected in a readable 
book called " Judge and Jury," the law on this and kin- 
dred subjects. 



58 Talks About Lam— No. 11, 



NUMBER ELEVEN. 



NUISANCE. 

What is a Nuisance ? 

Law-writers have well-nigh exhausted themselves in the 
attempt to define the word " nuisance." Blackstone said 
that it was "anything that worketh hurt, inconvenience, 
or damage." But it is apparent that too much is embraced 
in this broad definition. So that, finally, some of the 
modern law-writers have admitted their inability to fully 
describe, in a definition, all that is embraced in the word 
" nuisance." 

Public and Private Nuisances. 

And yet the law governing this subject is not difficult. 
Nuisances may be public or private. If the nuisance be 
a public one, that is, one in which the public, and not 
simply one or two or three individuals are concerned, 
then it becomes to be and is a crime. But if it be a pri- 
vate nuisance, that is, a nuisance which does not aflfect the 
public generally, but only a few people, it is not a crime, 
but is simply the subject of a civil action. 

So that the only difl'erence between the two cases is one 
of effect, as Mr. Wood in his work on this subject points 
out. A public nuisance must be one occurring in a thickly 
settled neighborhood, or where a number of people reside 
either temporarily or permanently. 



Nuisance, 59 

Examples of Public. 

Let us consider some public nuisances, of which we are 
given an account in a valuable publication called " The 
English and American Encyclopedia of Law." Draining 
filthy water from the back-yard and lot and garden into 
a brook flowing through a village was held in New York 
to be a public nuisance. Of course the brook was thereby 
made unhealthy. So it was held that an unguarded area, 
so near an open alley as to be dangerous to the public, 
was a nuisance. 

Pig-Pen. 

So also a pig-pen, which is not properly kept and is set 
up in such inconvenient parts of the town that it neces- 
sarily incommodes the neighborhood, is a public nuisance. 

Cemetery. 

So also, under certain conditions, a cemetery in the heart 
of a town, or a soap-boiler, or a tan-yard, might be public 
nuisances. 

Livery-Stable. 

A livery-stable in a town is not per se a nuisance; but 
if it is located in a thickly-settled part of the town and 
is badly kept, it is a nuisance. 

Cotton-Gin in Town not a Nuisance. 

But everything that inconveniences one is not on this 
account a nuisance. Let us see : In the year 1881, Mr. 
Allen proposed erecting a planing-mill and cotton-gin in 
the town of Henderson. It was to be operated by means 
of steam. Mr. Dorsey, living very near to the place on 



60 Talks About Law— No. 11, 

which the mill was to be located, about 120 feet, applied 
to the chancellor for an injunction to stop operations, 
alleging that the danger from fire would be greatly- 
increased, that the noise would render his dwelling almost 
uninhabitable, and that the smoke, cinders and ashes 
would injure the health and 'threaten the safety of the 
people in that neighborhood. But the Court quoted an 
old case and said that " if a man, instead of contenting 
himself with the quiet and comfort of a country residence, 
chooses to live in a town, he must take the incon\*eniences 
of noise, dust, flies, rats, smoke, soot, and cinders, and he 
cannot complain of the owner of an adjacent lot by reason 
of soot, smoke, noise and cinders caused in the use of his 
property, provided it be used for a reasonable purpose, 
and the manner of using it is such as not to cause any 
unnecessary damage or annoyance to his neighbors." So 
Mr. Allen went on, no doubt, and built his mill. 

Nor is a Public Jail. 

So, in the same county, several gentlemen asked the aid 
of the Court to prevent the commissioners of Vance 
County from erecting a public jail near their property, 
alleging that the closeness of the jail would greatly injure 
the value of the same and render that portion of the town 
less healthy. But the Court declined to interfere, saying 
that a jail was wQtjper se a nuisance, but that it might be 
kept in such a condition as to render it so. 

Public Nuisance— Remedy. 

Against a public nuisance one has ample remedy because 
the oflfender may be indicted, and if convicted may be 



JVuisance, 61 

imprisoned if he do not abate the nuisance. But not so 
with a private nuisance. Because in the latter case there 
can be no criminal action against the defendant. 

Private Nuisance— Remedy. 

What is the remedy against a private nuisance, that is 
to say a nuisance that annoys you and your family only ? 
Generally speaking, it is an action for damages. But if 
it appear that the nuisance is of such a character that 
adequate compensation in damages cannot be awarded, or 
such as will occasion a constantly recurring grievance 
which cannot otherwise be relieved against, in these cases 
the Court of Equity will interpose and abate or tear down 
the nuisance. 

IHill-Dam. 

Suppose, for example, that one erect a mill-dam, and 
that the water ponded thereby sobs and injures the adja- 
cent land ; suppose also that the yearly damage is twenty- 
five dollars. In this case the nuisance would not be abated, 
perhaps, if the damages could and would be paid. 

But suppose that a mill-pond caused sickness in the 
neighborhood, and that this fact was established by ex- 
perts or otherwise to the satisfaction of the jury, why 
the Court would no doubt cause the nuisance to be 
abated, because compensation in damages would not be 
adequate, and it would be a continuous nuisance. 

Common Scold. 

A common scold is a nuisance. At common law only 
women could commit this offence. The punishment there- 



62 Talks About Law— No, 11. 

for was curious. The common scold was taken to the 
nearest pond and there, being securely fastened to the 
ducking-stool, she was plunged into the water. To cool 
her wrath, no doubt. 

Men May Be. 

It is fair to state that the statute in many States has 
since extended this wholesome law to men as well as 
women. 

Contagious Diseases in Horse, Cow, etc. 

If a man bring a horse, cow, or other useful animal 
having a dangerous contagious disease into the presence 
of other animals, this is a nuisance. 

Other Examples. 

So any indecent exposure in a public place, or the doing 
any act which shocks and outrages public morals in a 
public place, is a criminal nuisance. So is loud cursing, 
swearing, and using indecent language in a public place. 

Public Nuisance May be Abated. 

It is laid down in the books that one, in certain circum- 
stances, may himself abate a public nuisance. But it is 
not safe to do so. However, the following seems to be 
the case when one may so act. It must be a public nuis- 
ance ; then the person himself, as well as the public, must 
have been injured thereby. There must be no breach of 
the peace, and no more must be done than just enough to 
abate the nuisance. But in this case, as in all others, the 
safest plan is to let the law take its course. 



Criminal Trespass, 63 

NUMBER TWELVE. 



CRIMINAL TRESPASS. 

DifTers from Civil. 

Every trespass on land is not a crime, of course. We 
have civil trespasses, and we have criminal trespasses. 

It is the boast of the law that it gives a remedy for 
every wrong. So if a man goes on another's land and 
tramples his grass or injures crops or fruit even by acci- 
dent, he may be sued and damages recovered. 

Forcible Trespass and Wilful Trespass. 

It is not of this kind of trespass that we propose to 
write at present, but of such trespasses as are violations 
of the statute law of the State, to-wit, criminal trespass. 
Of these there are two kinds : First, wilful trespass, and 
second, forcible trespass. 

The difference between them is this : Wilful trespass 
is committed without force and in the absence of the 
owner of the land generally. Forcible trespass is high- 
handed and occurs despite the owner's presence and 
against his forbidding. The latter is, hence, of course 
the graver of the two offences. 

Wilful Trespass. 

Let us consider wilful trespass for a moment. A man 
has a body of land on which he forbids any one's hunting. 
Now, if some sportsman goes on the land after being thus 
forbidden, to kill game or for any other purpose, he is 



64 Talks About Law— No. m. 

guilty of wilful trespass. Simply posting the land would 
not give the party notice unless he saw the poster. 

Bear in mind that one is answerable for all actual dam- 
age he does on the land, notice or no notice. But to fix 
him with crime he must have notice to keep oflf. This 
oflfence is the creature of statute. It did not exist at 
common law, and by this we mean for such a length of 
time that the memory of man runneth not to the contrary. 

Protects Land Against Squatters. 

Our Courts have said that it was enacted into law to 
protect landowners against squatters and careless persons. 
It has no application to a person who goes on the land in 
good faith under a claim of right. Nor can it be used to 
try the title to land. It will be seen that it is a very use- 
ful little statute in its place. It tends to preserve the 
peace. If a man does not wish another ever to put foot 
on his premises again, and so notifies him, and that other 
even presses the naked soil with his foot thereafter with- 
out license from the owner, he is acting in the teeth of 
this law. So much for wilful trespass. 

Forcible Trespass. 

Now about forcible trespass. It is the high-handed 
invasion of the property of another, he being present for- 
bidding. And a thing to be borne in mind is that title is 
not drawn into question. 

On One's Own Land. 

Indeed, a man may be, and often is, convicted of forci- 
ble trespass, not only on land to which he has title, but on 



Criminal Trespass, 65 

land which he has the legal right then to occupy. How 
is this ? 

Suppose that a landowner rents his land for 1893 to a 
tenant, the tenant to give up the land December 1, 1893. 
The first of December, 1893, comes. Landlord goes to 
land and demands possession ; tenant will not get out. 
Landlord forcibly puts him and his in the big road. This 
is forcible trespass. 

Actual Possession the Main Inquiry. 

Title is not drawn into question. On this head the only 
question is, who is in the actual possession of the land ? 
Do not let us get the matter confused. The landlord has 
his legal remedy, short, simple and inexpensive. Let him 
complain to the nearest Justice of the Peace, and the Jus« 
tice will have an officer remove the tenant. 

IHay Eject an Intruder by Force. 

. If the party in possession is a bare trespasser, a squatter, 
one who did not rightfully enter into possession, he may 
be removed from the land with force. But this is the 
only instance in which a man can take the law into his 
own hands and remove another from his land. For 
example : if, while a man were absent from home tem- 
porarily, some person were to take possession of his resi- 
dence or land, when the rightful owner came back he 
could use such force as was necessary to remove the 
intruder. 

Landlord Cannot Forcibly put out Tenant. 

It will now appear why the landlord could not remove 
his last year's tenant by force. Because the tenant entered 
5 



66 Talks About Law— No, 12. 

the land rightfully under a contract. And if the law per- 
mitted men who dispute about the title to land to remove 
each other therefrom there would be no end to strife, 
for every man thinks he is right in respect of his real 
estate holdings. 

Forcible Trespass in the '' Big Road." 

Some years ago a rowdy fellow came along the public 
road, and when in front of a dwelling began to curse and 
create disorder. The owner of the dwelling ordered the 
man to go away. To this the reply came that he would 
not, as he had as much right to the road as anybody. He 
was tried and convicted of forcible trespass. The Court 
said that he had as much right to the public road as any 
one so long as he behaved himself, but that for the pur- 
pose of this trial the landowner was in possession of the 
road fronting his land. 

Care in Putting any one off Land. 

From all the authorities on this subject it is safe to 
conclude that force ought not to be used to put another 
off any land unless that other is a mere intruder. If he 
is there by contract, written or unwritten, he cannot be 
forcibly ejected, even after his right to remain has ended 
under said contract. This is a very wholesome law. If 
it were otherwise discord and confusion would ensue, 
because each man would seek to right his own fancied or 
real wrong. 



The Law of Self-Defence, 67 

NUMBER THIRTEEN. 



THE LAW OF SELF-DEFENCE. 

General Principles. 

In our State, whenever a person admits that he has 
killed another with a deadly weapon, the law supplies 
malice ; and if nothing else appear, he is guilty of murder. 
Facts in mitigation or justification of his conduct must 
appear in evidence, otherwise he pays the capital penalty. 
As is well known in all criminal cases, the State must 
satisfy the jury beyond all reasonable doubt of the guilt 
of the accused. But this rule has no application when 
one admits that he has slain another. For when he makes 
this admission there is an end to all reasonable doubt, and 
the defendant has the burden cast upon himself to show 
facts and circumstances of excuse. 

Justifiable Killing. 

Every killing is a homicide. But of course there are 
several grades of homicide. 

When no particle of blame attaches to one in killing 
another, the law says that he is justified in the act. The 
familiar illustration of this is when the sheriff does execu- 
tion upon one by hanging him. 

Excusable Killing. 

Then we have the general classification called excusa- 
ble homicide. This may arise in several ways. If a per- 
son be doing a lawful act and accidentally kill another, 



68 Talks Ahout Law— No. 13. 

this is excusable homicide through misadventure. Or if 
one is set upon by another, and being " pressed to the 
wall," slay his assailant to save his own life, or his person 
from great bodily harm, this is called excusable homicide 
in self-defence. It is of this that we propose, in part, to 
write in this article. 

Murder. 

Before doing so, however, we will explain that there is 
another and deeper grade of homicide called felonious 
homicide. If the felonious killing be with malice, and 
this malice may be express or implied, we have the 
crime at which human nature shudders, called murder. 
But if the felonious slaying be without malice, we have 
manslaughter. 

Legal Excuses. 

Let us consider, therefore, what are the excuses that 
the law adjudges sufficient to reduce the grade of the 
killing from murder to excusable homicide or to man- 
slaughter. 

Words will not Justify Blow. 

In the first place, let it be borne in mind that words, 
however grievous, will not justify a blow, or excuse, or, 
indeed, even mitigate a killing. That is to say, if one use 
the most opprobrious epithet to your very face and, in 
consequence of the same, you strike him, you are guilty 
of a battery ; or, if you kill him, you are guilty of murder. 
True, in the former case the party who used the words 
would be indictable for an affray, but you would not be 



The Law of SelfDefmee. 69 

excusable. Generally speaking, the party who provokes 
the diflSculty is the more guilty of the two, and is so 
treated by the Courts. What will excuse a blow ? and 
what will excuse a killing ? Now quite a variety of facts 
and circumstances will mitigate a killing from murder to 
manslaughter, but what will absolutely excuse the fact? 

Self-Defenoe. 

If one strike and slay another to save his own life, or 
his person from great bodily harm, which the assailant is 
about to and would inflict but for the disabling blow, the 
slaying is excusable. 

Slaying to Prevent Crime. 

So if one kill another to prevent a felony threatened 
and begun, and which, if committed, would be punishable 
with death, he is excusable. 

For example, if a man were breaking into your dwell- 
ing in the night time and you were to shoot and kill him 
to prevent the crime, you would be excused. So if one 
make a criminal assault on a female and is killed to pre- 
vent it, it would be excusable homicide. But after the 
assault was consummated if the assailant were killed, not 
to prevent his escape, but in the heat of passion, this 
would be murder. 

Killing tlie Violator of tlie Home. 

Even if one kill the violator of the sanctity of home in 
flagrante delicto it is not excusable homicide, but man- 
slaughter. The famous trial of Daniel Sickles for the 
slaying of Philip Barton Key in Washington City many 



70 Talks About Law— No. 13, 

years ago illustrated this point; and in the trial, the 
opinions of our North Carolina Judges were often quoted. 

Killing to Hold Prisoner. 

If one, arrested by an officer for a felony, is making 
his escape and it become necessary to shoot in order to 
hold the prisoner, this is excusable homicide, perhaps. 
Certain it is, if the offender is resisting arrest. So it is 
apprehended that if a private citizen arrest one who has 
committed a capital felony, and the offender endeavors to 
escape, and it becomes necessary to shoot and kill in order 
to hold the prisoner, this will be excusable. 

Killing a Mere Trespasser. 

Many years ago a man shot and killed another who was 
walking in his front yard in the night time. The party 
was not committing any offence. Our courts held that to 
kill a man to prevent a bare civil trespass was murder. 

Shooting a Thief. 

Our statute provides that every person present at any 
breach of the peace shall endeavor to suppress the same, 
and, if necessary, may arrest the offenders. 

A case occurred in the county of Wayne in 1870 which 
is interesting. Barney Bryant had a hog stolen. He 
suspected a fellow named Cogdell; armed himself and 
went to Cogdell's house. Cogdell, being accused by Bryant 
of the theft, ran away. Bryant ordered him four times 
to stop, and then shot and hit him. For this Bryant was 
tried and convicted. "Had he killed when he shot it 
would have been manslaughter at the least," says the Court, 



The Law of Sdf-Defence. 71 

It will be observed that this stealing did not occur in the 
presence of Bryant ; nor did he say that he came to arrest 
Cogdell ; nor was it shown that the shooting was neces- 
sary to prevent his escape ; nor did he have a warrant. 

In this case the Court clearly intimates that one is not 
to be excused who slays another, not arrested, but fleeing 
from arrest for a minor felony, such as theft and the like. 

But it would seem that if the offence committed be 
capital, and a person present makes known his intention 
to arrest, and the felon flee, he may be killed, if it be 
necessary to kill to prevent his escape. 

Shooting a Burglar. 

Therefore, in these latter days of burglary, we may 
take courage, for if the burglar is fleeing from our house 
in the dark and we command him to halt and be under 
arrest, and he fail to do so, but continues his flight, and 
we shoot and kill him, and the shot be necessary to pre- 
vent his escape, this will be excusable on our part. 

Manslaughter. 

We have seen that words will not excuse a blow or 
mitigate a killing. But a blow will often reduce the grade 
of homicide from murder to manslaughter. 

For example, if two men meet and fight willingly, and 
in the heat of passion one slay the other, this is but man 
slaughter. The law has regard for the weakness of 
mankind. 

Malice. 

Sometimes one man will have a grudge against another, 
malice the law calls it, and he will provoke that other to 



72 Talks About Law-^No. IS, 

strike, and after the first blow is struck, the party 
assaulted will draw his weapon and take human life. If 
the jury find such facts as these it would make a case of 
murder. We do not have malice if the crime be man- 
slaughter. " Malice prepense " and the " furor brevis " 
do not go together. " Malice excludes passion ; passion 
presupposes the absence of malice." This doctrine was 
laid down in Madison Johnson's case, in the first volume 
of Iredell's Law. And while it has not been changed to 
this day, still our Court, in a case in the 80 N". 0. K. 
against one Barnwell, says that if there had been ill-will, 
but a reconciliation take place, and then a killing, on a 
fresh provocation, the law will refer the motive to the 
latest provocation, and not to the old grudge. 

Murder, Although Provocation. 

Generally speaking, therefore, we may say that a kill- 
ing upon provocation is not murder, but manslaughter. 

But in a case against one Curry, in the first of Jones, 
we find three exceptions to this rule, as follows : 

1. When there is provocation, no matter how strong, if 
the killing is done in an unusual manner, evincing thereby 
deliberate wickedness of heart, it is murder. 

2. Where there is but slight provocation, if the killing 
is done with an excess of violence out of all proportion 
to the provocation, it is murder. 

3. Where the right to chastise is abused, if the measure 
of chastisement, or the weapons used, be likely to kill, it 
is murder. 



The Law of 8df Defence. 73 

Preparing the Weapon. 

A drunken fellow caught hold of the bridle-rein of a 
man^s horse and would not let the rider proceed on his 
journey. His journey was delayed about ten minutes. 
The men were somewhat related, and had just been drink- 
ing together. Finally the man on the horse dismounted, 
knocked the offender down with a jug filled with molasses, 
and, after felling him to the ground, crushed in his skull 
with the stone jug, adding, " D — n you, lie there." This 
was held only manslaughter ; and was not embraced in 
the second exception above because the provocation was 
not very slight, and there was no malice, and the weapon 
was not prepared to kill. This case is reported in the 
fifth of Jones. 

'' Pressed to Wall." 

We often hear of one " retreating to the wall." 

What does it mean ? Certainly not that he shall actually 
go back until he come to an obstruction which prevents 
further retreat. It means simply that the party assaulted 
must flee as far as he conveniently can, either by reason 
of some wall, ditch or other impediment, or as far as the 
fierceness of the assault will permit him. 

If one is defending his habitation, and is without fault 
himself, he is not compelled to retreat. 

So if a person unlawfully and feloniously assault one, 
retreat is not necessary. Nor does an officer, lawfully 
arresting one, have to retreat to the wall. 

But if the assault is without any felonious intent, the 
person assaulted may not stand his ground and kill his 
adversary, if there be any way of escape open to him. 



74 TcdTcs About Law— No, IS, 

Pressed to Wall in Willing Fight. 

So, even if one enter into a fight willingly, and in tlie 
progress of the tight be put to the wall, and it become 
necessary in order to save his own life, or his person from 
great harm, that he kill his adversary, this is excusable 
homicide. 

Apparent Danger. 

It would not be proper to conclude this paper without 
stating that if a person is assaulted in such a way as to 
induce in him a reasonable belief that he is in actual dan- 
ger of losing his life, he will be justified in defending him- 
self, even if the danger prove to be apparent only and not 
real. For example, if one draw and present a gun or pis- 
tol at another, and that other, reasonably fearing bis life 
to be in danger, shoot and kill first, this will be excusable ; 
although the dead man's weapon should be found after- 
wards to be not loaded. 

A Suggestion. 

In North Carolina, at the present time, we have three 
verdicts in cases of homicide : (1) guilty (generally) ; (2) 
guilty of manslaughter ; (3) not guilty. 

Our Judges now, often, are compelled to charge the 
jury that the prisoner is guilty of murder or of nothing. 
The law has no grade between the two. In other words, 
cases arise in which there is no element of manslaughter. 
It is, hence, guilty or not guilty. 

Juries are human, and are loth to take human life ; hence 
the guilty sometimes escape entirely ; whereas, if there 
were an intermediate grade of crime of less gravity than 



The Law of Self-Defence, 75 

murder, it would rarely occur that there would be a mis- 
carriage of justice. 

New York State and Texas and Tennessee, and many 
others, have changed the law of homicide very materially 
and with satisfactory results. 

There they have murder in the first degree and murder 
in the second degree. 

All murders which are perpetrated by means of poison- 
ing or lying in wait, or which are committed in the per- 
petration or attempt to perpetrate any arson, rape, rob- 
bery, mayhem or burglary, and all other kinds of wilful, 
deliberate and premeditated killings, are murder of the 
first degree. 

Murder in the second degree includes all other kinds of 
killing not embraced in the definition of murder in the 
first degree. Soihat when the unlawful killing of a human 
being is the result of malice, suddenly produced at the 
time the fatal blow is struck, and the killing is without 
premeditation or deliberation, it is murder in the second 
degree. 

Our lawgivers, now about convening, will find it inter- 
esting to see if the change is desirable and necessary. 

The suggestion made above has been adopted by the 
Legislature, and we now have murder in the first degree 
and murder in the second degree. 

So that now when a homicide occurs it is murder, by 
the presumption of the law, in the second degree. And, 
to constitute murder in the first degree, the State must 
show the circumstances of the killing to be such as the 
above statute indicates. 



76 Talks About Law — No. i^. 



NUMBER FOURTEEN. 



MARRIED WOMEN. 

The Law's Favorite. 

A married woman is the law's favorite. A married 
woman is often protected when a man or a single woman 
would not be. And a single woman is often bound by a 
contract not binding on a married woman. Let us see 
what the law on this subject is. 

Married Women Generaily not Bound by their Contracts. 

And first, as to the contracts of a married woman. 
Before proceeding, it is, perhaps, proper to say that no 
reference is had to a married woman w^o has taken out 
papers and become a free-trader, nor to a woman aban- 
doned by her husband, etc. These women can contract 
just like single women ; and our courts have held that the 
statutes permitting them so to do are not in violation of 
our constitution. 

Examples of the Same. 

Here is Mrs. Jones at her home in the country. Mr. 
Jones has gone to the town to market his produce. Along 
comes an agent selling flowers and grapevines. Mrs^ 
Jones is both prudent and economical ; but the agent offers 
everything so cheap that it will be a real saving to give 
him an order. The smart agent carries off the wife's 
name signed to an order for ten dollars worth of grape- 
vines and flowers. 



Ma/rried Wamen. 77 

Now this contract does not bind the wife, nor does it 
bind the husband. For no such woman is capable, with- 
out the consent of her husband, to make a contract, except 
for her necessary personal expenses or for the support of 
her family. Flowers and fruit trees are neither " neces- 
sary personal expenses," nor "for the support of her 
family." Hence the contract is not binding. 

How can she Bind her Land? 

So far seems to be clear sailing. But in what a state 
of uncertainty is the legal profession over other questions 
arising under Section 1826 of The Code! The long and 
the short of that section seems to be about this : A mar- 
ried woman cannot, under any circumstances, bind her 
separate real estate, unless she is privately examined as 
required by law. 

How may she Bind her Personal Estate ? 

As to her personal estate, (1) she can bind this without 
her husband's consent for her necessary personal expenses 
or for the support of her family ; (2) or she may bind her 
separate personal estate to pay his debts, and of course 
hers, if she sign a paper specifically charging her personal 
estate and the husband joins in the note. 

For the Support of her Family. 

A case arose some years ago from Forsyth County in 
which our Court was called on to say what is meant by 
the words "for the support of her family," and the judi- 
cial interpretation put upon them was very restrictive. 
A married lady was running a boarding-house " for the 



Y8 Talks About Law — No, IJf, 

support of her family." She went to merchant Clark and 
purchased meat, flour, etc., with which to feed the board- 
ers, and thereby get money with which to support the 
family. The debt not being paid, Clark sued. ''You 
can't sue me," she said, " I am a married woman." " But 
these things were for the support of your family." 

The Court held otherwise, and said that the statute did 
not embrace goods " bought for the successful prosecution 
of a business from the profits of which such support is to 
be obtained." 

It has reference only to food and clothing, etc., for the 
family. 

Married women are protected by the law in other ways. 

Time Cannot run Against her Rights. 

If you give your bond to a man and he does not collect 
anything on it in ten years, or make a new promise to 
pay, it is out of date. But if it had been to a married 
woman she could have sued on and collected the bond 
fifty or more years afterwards, if she were still married. 
No statute of limitations runs against a married woman. 

Her Husband Responsible for her Fights. 

Again, if a man and his wife engage in a fight with 
some one, the law is so tender with the sex that it pre- 
sumes that the wife fought under the husband's directions. 
And, if she did not "egg on" the fight, and was not the 
aggressor, she would not be guilty. This is so of misde- 
meanors, even when the wife is not fighting to protect, 
but to assist the husband. 



Married Women, 79 

Nor can he Correct her with Switch no Larger than hie Thumb. 

It used to be said that a husband could correct his wife, 
if the instrument of correction be not larger than his 
thumb. But this is not the law. 

The law is loth to raise the curtain on domestic privacy, 
and will not do so unless the husband treat his wife 
cruelly, or do her serious or permanent injury. 

Knowledge of this part of the law is of little practical 
use, we are glad to say, in conservative old North Caro- 
lina, where the twain are still, usually, lovingly one. 



80 TaZka Aboict La/w—No, 15. 



NUMBER FIFTEEN. 



DIVORCE LAWS. 

King Alfred. 

With one consent, historians agree that Alfred was the 
wisest, best and greatest of early English kings. His 
title to this distinction rests in a large measure upon a 
" most great and necessary work " which he executed in 
a masterly manner. "He reduced the whole kingdom 
under one regular and gradual subordination of govern- 
ment." That masterpiece of judicial polity, the subdi- 
vision of England into tithings and hundreds, if not into 
counties, had its birth in his brain. 

The Family the Unit. 

He recognized the fact, \vhich characterized the patri- 
archal days, that the family is a unit of which the father 
is the head ; that the sum total of these units is the State ; 
and finally, that the purity and goodness of the State 
exactly equals the purity and goodness of its component 
parts. 

These principles are simple, but they are basal. Alas I 
how much wiser we have grown than were our parents 1 

Many States have Loose Divorce Laws. 

A bird's-eye view of our American laws on the subject 
of divorce, will disclose the fact that the family fireside, 
in many States of the Union, possesses not the charm and 
beauty and purity that once sanctified it. 



Divorce Laws. 81 

Before proceeding, it is proper to state that good old 
North Carolina, conservative in all things, is also slow 
and conservative in wrongdoing. She practically holds 
to the New Testament rule, and will not grant a divorce 
unless the marriage vow is broken. In South Carolina 
when a man and woman are joined together, they cannot 
be torn asunder. 

We all know that a statute of a State is simply the 
enactment into law of the will of a majority of the people 
of that State. So that a statute is what the people think 
and wish. What tnust be the state of society of Dakota, 
where a husband may get a divorce if his wife slanders him, 
or is cruel to him? Or in Pennsylvania even, where deser- 
tion and cruelty entitle one to a divorce ? Or especially in 
Utah, where the frail marriage tie is unloosed " whenever 
it is made to appear that the parties cannot live in peace 
and union." 

We in North Carolina are made to feel the evil of these 
immoral laws. For " full faith and credit" must be given 
to the judgments of courts of other States. 

Married in One State Not Wiarried in Another. 

Sometimes it will happen that a man divorced by the 
laws of Utah or Dakota will marry again. Perhaps he 
was a resident of New York before going to Utah, and 
perhaps he did not serve an actual notice of his suit upon 
his New York wife. Such a divorce would not be good 
in New York, and perhaps in some other States. 

If he and his new wife set out on a bridal tour, in some 
States, as Dakotah and Utah, they would be married, but 

6 



82 Talks About Law— No. 15. 

in other States, as New York or South Carolina, they 
would not be married ! 

Uniform Divorce Laws 

Hence an effort has been made to have Congress pass 
a uniform law regulating divorce. But this canaot be, 
because the views of the South generally differ so much 
from the views of the North and West. 

The tendency of divorce legislation is towards evil 
rather than better things — as witness the "advanced" 
thought bought at great price and elaborately spread on 
the pages of The Arena^ The Forum^ and other maga- 
zines. There we learn that it is cruel and barbarous to 
compel husband and wife to live together when love is 
dead. 

There a dozen short-haired women in Bloomer costumes, 
will cackle to their own satisfaction, and the editor will 
gravely denominate their mental output "a sj'^mposium " ! 

Lord Stoweli'8 Opinion. 

Colonel IngersoU, the arch-infldel, " by merit raised to 
that bad eminence," is a leader of thought along this line, 
as well. To purify their thoughts and chasten their style, 
we commend the opinion of Lord Stowell, delivered in a 
celebrated divorce case : " To vindicate the policy of the 
law is no necessary part of the office of a judge ; but if it 
were it would not be difficult to show that the law in this 
respect has acted with its usual wisdom and humanity, 
with that true wisdom and that real humanity that regards 
the general interests of mankind. For though in particu- 
lar cases the repugnance of the law to dissolve the obliga- 



Divorce La/ws, 83 

tions of matrimonial cohabitation may operate with great 
severity upon individuals, yet it must be carefully remem- 
bered that the general happiness of the married life is 
secured by its indissolubility. When people understand 
that they must live together, except for a very few reasons 
known to the law, they learn to soften by mutual accom- 
modation that yoke which they know that they cannot 
shake off; they become good husbands and good wives 
from the necessity of remaining husbands and wives; for 
necessity is a powerful master in teaching the duties which 
it imposes. If it were once understood that updn mutual 
disgust married persons might be legally separated, many 
couples, who now pass through the world with mutual 
comfort, with attention to their common offspring and to 
the moral order of civil society, might have been at this 
moment living in a state of mutual unkindness, in a state 
of estrangement from their common offspring, and in a 
state of the most licentious and unreserved immorality. 
In this case, as in many others, the happiness of some 
individuals must be sacrificed to the greater and more 
general good." 

Indeed we have often wished that all men and women 
who are "advanced thinkers" might live together in 
one place. They think that man is a machine, that can 
of itself attain perfection, and that if you will put away 
all temptation he will attain unto it. Of course, they 
would abolish God the first thing; then women would 
vote ; then when love died between man and wife, a pair 
of couples would swap around ; whiskey and opium would 
be dumped into the sea (a good thing perhaps); then 



84 Talks About Law— No. 15'. 

everybody should be educated ; and then — why then, man 
is perfect ! 

'There are more things in heaven and earth « Horatio, 
Than are dreamt of in your philosophy." 

" A dwarf on a giant's shoulder sees farther of the two," 
was not said of morals. 

Carolina, Carolina, Heavens Blessings Attend her. 

Honest, conservative, God-fearing North Carolina, and 
States sister to you in simplicity, the day may not be 
remote when you shall be called upon to stay the tide of 
infidelity, licentiousness and lawlessness that are corrupt- 
ing the life of some of your rich, self-sufficient and godless 
sisters. 



The Statute of Frauds. 85 

NUMBER SIXTEEN. 



THE STATUTE OF FRAUDS, 

" Law is the perfection of reason," says my Lord Coke. 
This observation applies to the gre^t body of our laws, 
which is called the common law ; it can have little mean- 
ing when applied to the statute laws. 

The truth of these remarks will perhaps more fully 
appear when we consider such a subject as the Statute of 
Frauds. 

Und Cannot be Bought Without Writing. 

No amount of reasoning will lead one to the conclusion 
that the title to land cannot pass except by a written 
instrument ; and yet we know that if A buys B's dwelling 
verbally for one thousand dollars, pays half cash, and 
agrees to pay the balance in six months, and has a dozen 
witnesses to the trade, B can " back out," if he so wishes, 
and A cannot make him comply with the bargain. True, 
A can get his five hundred dollars back, but he cannot 
force B to give him a deed. The reason for this is simply 
that the Legislature has so said. 

The Law 250 Years. 

In 1649 Charles the First was executed. Twenty-nine 
years thereafter, or, as the law books put it, in 29th Charles 
the Second, the famous statute, called the Statute of 
Frauds, was enacted in England. Much of this statute 
has since been enacted in North Carolina. And of it the 



86 Tatka About Law— No. 16. 

great Lord Nottingham has said, that "every line was 
worth a subsidy"; on account of which remark, and 
because it has been the fruitful source of so much litiga- 
tion, William Smith, a genial English law-writer, was 
minded to say that " every line has cost a subsidy." 

What is the Statate of Frauds? 

Instead of giving the words of our North Carolina 
statute, which are many, dull and involved to the lay mind, 
let us illustrate, by examples, what the law under this 
head is : 

(1) Twelve men witness a verbal sale of a house and 
lot or farm. All the money is paid, by way of earnest 
money, and yet the seller is not bound, unless the contract 
or some note or memorandum thereof is in writing and 
signed by the seller or by his agent lawfully authorized. 

(2) Every lease of land for more than three years is 
void unless in writing. 

Promise to Pay Debt of Another Must be in Writing. 

(3) John Smith goes into a store with a friend and says 
to the merchant, "Let my friend Jones have ten dollars 
in goods, and if he does not pay you, I will." The mer- 
chant lets Jones have the goods. Jones does not pay the 
bill, and so Smith is sued. Now Smith is a bad man and 
does not try to pay his debts, but he is a sharp one and 
employs the best legal talent. When the trial comes oflF, 
Smith's lawyer pleads that the contract, not being in 
writing, is void, as it was a promise to pay the debt, 
default or miscarriage of another. And such is the law. 



The Statute of Frauds, 87 

ExeGutor'8 Promise Must be in Writing. 

(4) If an executor or administrator make a promise, not 
in writing, to pay the debt of the deceased, no action can 
be brought on the promise. 

Liqnor Dealer's Bill. 

(5) No retailer of liquors by the small measure can col- 
lect more than ten dollars on open account for the sale of 
such liquor. 

Such, in brief, is the general scope of the famous Statute 
of Frauds, passed more than two centuries ago, its object 
being to suppress fraud and perjury. 

These principles seem simple and easy of application. 
But, as our next talk will show, they present, in the hands 
of our discriminating and progressive courts, and under 
the varying circumstances of each case, as many phases 
to the mind as does the variant and revolving kaleidoscope 
to the human eye. 



88 Talks About Law— No, 17. 



NUMBER SEVENTEEN. 



THE STATUTE OF FRAUDS, 

Sale of Lands Must be in Writing. 

All contracts to sell or convey 2iny lands or any interest 
in or concerning them shall be of no effect, unless such 
contract or some memorandum or note thereof shall be 
put in writing and signed by the party to be charged 
therewith, or by some other person by him thereto law- 
fully authorized. 

Examples. 

In 1863 Charles Craig left Wilmington for Nassau. 
Before going he executed a deed to Thomas Craig, his 
brother, to a tract of land. Charles alleged that Thomas 
paid him nothing for the land, and that it was verbally 
agreed at the time of the execution of the deed, that if 
Charles came back to the State Thomas should give up 
the land. Charles returned from Nassau. He demanded 
the land back. Finally, Charles sold the land to Bonham. 
Bonham sued Thomas Craig. But he did not recover the 
land. Having knowingly conveyed the land, it cannot be 
shown, by word of mouth, that there was an agreement 
to recovery. If Charles had alleged and proven that 
Thomas defrauded him, or deceived him into executing 
the deed, equity would have relieved him. 

Must tlie Consideration be in Writing? 

"Received April 21st, 1863, of George Thornburg five 
hundred dollars on account of sale of my Lenoir lands 



The Statute of Frauds. 89 

owned by myself and J. W. Trauseau." Signed by Wil- 
liam Masten. 

The same land was soon afterwards sold to pay Mas- 
ten's debts. But Thornburg sued Masten for a deed, and 
contended that the little receipt contained the contract. 
Masten's lawyer replied that the " consideration " of the 
contract was not expressed. But our Court held that the 
consideration need not be expressed in the memorandum 
of the contract. 

No Damages for Breaeb of such a Contract. 

Away up in Haywood County in 1872 a Mr. McCracken 
sued another Mr. McCracken. The cause of action was 
that the plaintiff had agreed, by word of mouth, to erect 
a mill-dam, saw-mill and fixtures on the lands of the 
defendant; that he did so, and that the defendant had 
agreed, also by parol, to convey certain lands to the 
plaintiff in consideration thereof. The action was not to 
recover the land, but damages for breach of the contract. 
But says the Court, " What is the difference between com- 
pelling one to part with his property and mulcting him 
with damages if he tries to exercise ownership over it?" 
So he recovered no damages. 

Can One Under a Verbal Agency Sell Your Lands? 

Now suppose that your agent signs your name to a con- 
tract to convey land, and he had no written authority to 
do so, does this bind you? Yes. 

In October, 1880, the North State Mining Company 
through Eames, its agent, agreed to buy certain mineral 
lands in Ashe County. The agent delivered, in part pay- 



90 Talks About Law— No. 17. 

ment, certain drafts; these were not paid and suit was 
brought to recover on them. The defendant denied that 
it contracted, and pleaded the Statute of Frauds. But the 
Court said that the defendant must pay and that the 
agent can bind the principal, although the principal's 
name is not mentioned in the writing, and even if no 
writing authorizing the agent to buy were shown. 

Buying Land at Auction. 

This leads us very near to a principle of law exemplified 
daily. How is a man who bids and buys at an auction 
sale of land bound? He signs no writing. 

Down in Edgecombe in 1866 the auctioneer said, "Put 
it down to James S. Long ;" whereupon the clerk of the 
sale enters on his sale list, in the presence of Long, "Eay- 
ner tract to James S. Long at $40 per acre." 

Now, how is Long bound ? Well, the advertisement of 
the sale is the " memorandum of the contract " ; then, the 
auctioneer is the agent of the buyer and enters the bid in 
his presence. So the purchaser is bound, notwithstand- 
ing the Statute of Frauds. ' 

Judgment may be Assigned by Parol. 

So it has been held that a judgment may be assigned 
by parol ; then the parol purchaser may have execution 
to issue, and under it the land can be sold. 

Party Signing Bound, Other Party Not. ^ 

Again, one party may sign a writing relating to land 
and thereby become bound in law, while the party with 
whom he contracts may not have signed and will not be 
bound. 



The Statute of Frauds. 91 

'' Betterments." 

Very often one person, relying on the word of another, 
will build a house on that other's land before a deed is 
executed. Then, perhaps, the landowner dies, or refuses 
to execute the deed. What remedy has the aggrieved 
party ? He cannot get the land because the statute is in 
his way. Equity, that guardian of the oppressed, steps 
in and says to the landowner : " You shall not hold and 
enjoy the land thus improved, without compensation for 
the additional value which these improvements have con- 
ferred on the property ; it is against conscience that one 
man shall be enriched to the injury of another, induced 
by his own act." 

Can you Connect Writings by Parol ? 

Suppose there be two or more writings that contain the 
contract, can you offer parol evidence to connect the 
writings? No, you cannot. Unless the writings them- 
selves show their connection with the subject-matter, you 
cannot connect them by word of mouth. 

Abandonment by Word of Mouth. 

Another interesting question arose : One can bind him- 
self with respect to a contract relating to land only by 
some writing, can he abandon such a contract by word of 
mouth ? Yes. Our Court says " that this opinion that a 
parol discharge of a written contract within the Statute of 
Frauds is available in equity to repel a claim upon that con- 
tract, to which the mind of Lord Hardwicke came so reluct- 
antly, is since firmly established by many authorities." 



92 Talks About Lam— No, 17. 

So much for this one section of this famous statute, 
which is said to owe its origin to Sir Matthew Hale, its 
object being to " prevent the facility to frauds and the 
temptation to perjury held out by the enforcement of 
obligations depending for their evidence upon the unas- 
sisted memory of witnesses." 

Its consideration has carried us somewhat into the nice- 
ties of the law ; but the knowledge is not unimportant. 
However, our next " talk " will be more chatty. 



The Statute of Limitations, 93 

NUMBER EIGHTEEN. 



THE STATUTE OF L.IMITATIONS. 

Previous to the year 1868 we had no Statute of Limi- 
tations with reference to notes and bonds in North Caro- 
lina ; but we had the Statute of Presumptions. 

The diflference between the two may be illustrated by 
considering a simple note of hand, upon which no payment 
has been made for three continuing years next after it 
falls due. 

The Old Law. 

Now, an old note, executed before the war, in such cir- 
cumstances, would be presumed to be paid ; but a note 
executed since 1865, in a like case, would be of no value, 
if the statute be set up as a defence, because the statute 
is a complete bar. The jpresumjption might be rebutted 
by showing, as a fact, that the maker had not paid the 
note, or that he had been continuously out of the State, 
or insolvent. But when the Statute of Limitations begins 
to run, no power can stop it. This statute is not favored 
by the Courts, and hence a party cannot avail himself of 
it, unless he specially plead it. 

Does Not Run Against Infant, Etc. 

Before proceeding with the discussion, it may be appro- 
priate to state here that certain classes of persons are not 
injured by sleeping on their rights. The lapse of time 
does not aflfect them. No lapse of time can bar a mar- 



94 Talks Alout Lww—No. 18, 

ried woman, or an infant, or an idiot or lunatic, or a per- 
son in jail or the State's prison. 

Such persons are said to labor under disabilities, and no 
Statute of Limitations begins to run as to them until the 
married woman's husband dies, the infant attains his 
majority, the lunatic regains his mental faculties. 

Example. 

Let us illustrate : In 1850 Sarah Jane Jones, at the age 
of twenty, marries John Brown. Here we see two disa- 
bilities, nonage and coverture. Miss Jones' father dies 
leaving land, but also leaving many debts. His lands are 
sold to pay the debts. But Miss Sarah is not made a 
party to the proceeding. A commissioner of the Court 
sells the land at public outcry to the best bidder. The 
purchaser gets a deed dated in 1851, and enters into pos- 
session of the land. In 1892 the land has become very 
valuable, gold is found on it or else a town has sprung up 
near it. In some way Mrs. Brown discovers that the title 
is not good and sues for her portion of the land. The 
purchasers, and those in possession, in vain assert that 
they have a good deed to the land, and that they have 
been in possession of the same near half a century. Mrs. 
Brown pleads, first that she was not a party to the pro- 
ceeding, that she was an infant when she married, and 
that Mr. Brown is still alive, and that no time has run 
against her. The Court sustains her plea, and so she 
recovers the land. The purchaser, no doubt, would be 
protected to the extent that his money went to pay Mrs. 
Brown's father's debt ; but he loses the land. 



The Statute of Limitations, D5 

If Miss Jones had been of age when her father died, 
and had married, even the day after his death, she could 
not have recovered the land, as we shall presently see, 
because the statute, having begun to run against her even 
for one day, continues to run. So, if Mr. Brown had died 
and she had married again, the statute would have begun 
to run as to all rights that existed before the second mar- 
riage. Of course the statute would not run against her 
during this marriage any more than during the first, as lo 
rights accruing after the second marriage. 

But let us consider persons who labor under no disa- 
bilities. 

Six Months Statute. 

The shortest time within which one is barred is six 
months, and this applies to only one class of cases. If a 
person slander another, the suit must be begun within six 
months after the words spoken ; otherwise the statute bars 
a recovery. 

One Year. 

Then follows the one year statute, and this will bar one 
in the following cases (among others) : 

Damages sustained by the wrongful death of a person. 
Application by widow for year's allowance. Rights of 
action in contracts of insurance. A civil action for dam- 
ages for assault, battery, or false imprisonment, or for libel. 

Two Years. 

Then comes the two years statute, shutting out an action 
for a legacy, or for a penalty for usury. This statute also 



96 Talks About Law— No, 18. 

says that one who purchases land from an heir two years 
after death of the owner, is protected against any credi- 
tors of the deceased. So, if a railroad hold a right-of-way 
two years, the real owner is barred in many cases. 

Book-Debt Oath. 

If a man have an account against a dead man's estate, 
and cannot prove it in any other way, he may, in certain 
circumstances, put his book in evidence, and then he will 
recover the amount of his book account, not exceeding 
sixty dollars ; and for the several articles sold and deliv- 
ered within the two years next before the commencement 
of the action. This is called the book-debt oath, and is an 
exception to the rule that a party to a suit cannot testify 
against a dead man. 

Three Years. 

The three years statute applies to more cases, perhaps, 
than any other. 

It applies, generally speaking, to all contracts, express 
or implied, verbal or written, unless under seal. An action 
for trespass on land must be brought within three years. 
So, also, if a man take and convert your horse, cow or 
other personalty, you must sue for it in three years. An 
action against the sureties of a guardian, executor, or 
administrator, or collector, on the official bond of their 
principal must be brought within three years after the 
breach thereof complained of. So, also, if one wait more 
than three years after he discovers any fraud, however 
gross, against himself, before suing, he is barred. 



The Statute of Limitation^. 97 

Bond and Note. 

While an action on a note is barred in three years, an 
action on a bond is not in ten years ; a bond has a seal 
and a note has not. But a surety on such bond is pro- 
tected after three years. If the principal on a bond or note 
make a payment, the statute is said to be arrested, and 
time on the note or bond begins anew even as to the surety ; 
the old time is lost. But if the note or bond be barred 
when the payment is made, it is not revived by that act 
against the surety. A promise to pay any debt, which 
has become barred by the statute, is of no avail, unless 
such promise is in writing and made to the creditor, but 
a simple payment will revive the bond, as we have just 
seen. 

Six Years. 

The six years' statute has reference to actions upon the 
official bonds of any public officer ; and against executorsj 
administrators and collectors, after their final accounts 
have been audited and filed according to law. 

Seven Years. 

A judgment of a justice of the peace may be sued on 
within seven years after its rendition ; and a claim against 
the executor or administrator of a dead man's estate is 
absolutely barred after seven years from the qualification 
of the executor or administrator, provided he has adver- 
tised for claims according to law. But the creditor is 
barred if the executor has personal notice served on him 
to present his claim, and he fails to do so for one year, 
7 



98 Talks About Law— No. 18. 

Ten Years. 

The ten years statute is an important one. An action 
on a bond is barred in ten years. An action on a judg- 
ment of the Superior Court is also. So, if a man mort- 
gage his land and make no payment on the mortgage 
for ten years after it falls due, he remaining in possession 
of the land, the mortgage cannot be collected, if the 
statute be pleaded. 

If the action sought to be brought cannot be classified 
under any of the above heads, then it is barred after ten 
years. 

So much for civil actions. 

Criminal Statute of Limitations. 

Now as to criminal actions, the State says that it will 
not punish a man for a simple misdemeanor if two years 
have passed before he is arrested. This applies to assaults 
and batteries, and other misdemeanors. But as to felonies, 
e. g.y murder, burglary, larceny, etc., there is no statute of 
limitations, and the offender may be convicted after any 
length of time. 

Wlien Does the Statute Brgin? 

Sometimes it is very difficult to tell exactly when the 
statute begins to run. It would be manifestly unjust to 
allow the statute to begin to run until the parties were 
placed in adversary relationship. 

Attorney and Client. 

Take the case of an attorney and his client. Suppose 
that an attorney collects a hundred dollars for his client, 



The Statute of Limitations, 99 

and that the client sues the attorney for the money hefore 
demanding it^ why he would go out of Court with nothing. 
Until the demand is made, they are not in hostile rela- 
tionship. So, also, if the attorney were to collect a sum 
of money and hold it a score of years, and no demand 
were naade on him for it, and, finally, he were sued, and 
then pleaded the lapse of time, the Court would not sus- 
tain the plea. The parties have to be at arm's length 
before the statute starts. 

Mutual Accounts. 

Take the case of mutual accounts. Jones is a merchant. 
Smith is a school-teacher. Smith has a running account 
with Jones. Jones' children attend Smith's school, and 
Smith has an account against Jones, which is agreed 
between them shall be applied to Jones' account. In other 
words, they have '' mutual " accounts. Should they finally 
"go to law," and should the statute be pleaded, it would 
begin to run only from the last item of the account. Xow 
were Jones' and Smith's accounts "separate" and not 
"mutual," the statute would begin to run from the date 
of each item of the account. 

Unlawful Conversion. 

There is one peculiar case which we must note. We 
have seen that the statute does not begin to run until the 
parties are at arm's length, as illustrated by the case of 
attorney and client, or principal and agent. We have 
also seen that one cannot recover any personal property 
which has been unlawfully converted, if three years have 
passed since the conversion. Now the point to be remem- 



100 Talks About Law— No. 18. 

bered is, that the real owner of the property converted 
will be barred at the end of three years, even if he had 
no knowledge of such unlawful conversion. For example, 
a case arose in Franklin County in w^hich an old Clerk of 
the Court sued the new clerk to recover certain fees 
received by virtue of his office. The statute was pleaded. 
But our Court said that it was the duty of the clerk to 
hold the funds and not to withhold them. And so the 
plaintiflf recovered. But if the clerk had unlawfully appro- 
priated the money to his own use, the statute would have 
begun from the time of such conversion. 

In our next, we will consider how the lapse of time 
aflfects actions to recover real estate. 



The Statute of Limitations^ Etc, 101 

NUMBER NINETEEN. 



THE STATUTE OF LIMITATIONS AS APPLICABLE 
TO LAND. 

Why PosseMiOR Important. 

" Possession is eleven points in law," wisely spoke Col- 
ley Gibber. At least so it often proves in many an action 
to recover real estate. 

What is its meaning? Why simply that the man in 
possession of land is entitled to hold and possess it until 
the plaintiff show a good title not only against him, but 
also against the whole world. 

The theory of our law is that the State owns all the 
land; and so, ordinarily, when an action is brought to 
recover land the party bringing the action must show 
that the State has parted with its title. 

Eminent Domain. 

In passing, we may remark that this is the reason that 
authorizes the State through its sovereign representatives, 
the General Assembly, to grant the power to certain 
agencies to condemn private lands, even against the will 
of the owner. This is called the State's right of Eminent 
Domain. In other words, when the State grants any of 
its land, and all lands in this State are held under a grant 
actually made, or presumed to have been made by the 
State, it is with the reservation that, at any time, the State 
may resume its ownership, if necessary for the public 
good, by making just compensation. 



102 Talk^ About Loajo—No. 19. 

When a railroad is chartered it is given the right to 
condemn land for its right-of-way. That is to say, the 
State delegates its right of eminent domain, and the com- 
pany exercises this right of sovereignty. 

Time Builds Titles. 

Time plays a very important part in building up and 
upholding titles to land. Some one has sagely said that 
time, which is constantly destroying and removing evi- 
dence in all other cases, is silently strengthening the chain 
of his title who is in possession. 

We will not stop to consider the ways of showing title 
out of the State, as it is of little general interest ; suffice it 
to say, however, that time will deprive even the State of its 
title. For example, if one be in the hostile possession of 
land under known and visible boundaries for thirty years, 
having no deed at all, not even the State can dispossess 
him, and if he have a deed for the same land, and hold 
it openly, continuously, hostilely, exclusively and under 
visible lines for twenty-one years the State is barred. 

Twenty Years Possession Witliout Color. 

And if one be in the actual adverse possession of land 
under known and visible bounds for a period of twenty 
continuous years, without any deed or other writing at 
all, he can hold the land against any person, even the 
legal owner. For the rightful owner has slept his rights 
away. 

The courts do not look with disfavor upon the plea of 
the statute of limitations as applicable to land ; but they 
do dislike the same plea when applied to other cases. For, 



The Statute of Limitations^ Etc. 103 

by the word " limitations," in this connection, is meant, 
"simply the time which is prescribed by the authority of 
law during which a title may be acquired to property bj^ 
virtue of a simple adverse possession and enjoyment." 

Seven Years Poesession Under Color. 

In this State, when a person, in possession of real estate, 
shall have been possessed of the same under known and 
visible lines and boundaries exclusively and adversely, 
and under colorable title, for seven years, he has acquired 
such a title to the land as to perpetually bar the claim of 
all persons, unless they labor under the disabilities of 
which we spoke in our last talk. 

This is a most useful provision of our law, and cures 
the defects in many a deed. Let us consider the language 
of the statute. In the first place, we will observe that the 
person must be in the actual occupancy of the land ; of 
course the occupancy of a tenant or an agent would serve 
equally well. Next, that he must occupy the land under 
a deed or paper which is " color of title." 

Whatie " Color of Title " 7 

Now, what is this " color of title ? " The Supreme Court 
of the United States says, " the courts have concurred, it 
is believed, without an exception, in defining * color of 
title' to be that which in appearance is title, but which 
in reality is no title." For example, a deed not regis- 
tered is not a valid deed, still it constitutes color of title, 
and is sufficient for the man in adverse possession of land 
to build his title upon. So also a deed not under seal is 



104 Talks About La/w—JSTo, 19. 

imperfect as a deed, but it is color of title. So the deed 
of an infant is " color of title," or the deed of an insane 
tnan is " color of title." Even the deed of an administra- 
tor is " color of title." 

Visible Lines and Bounds. 

But the possession must not only be under color of title, 
it must also be under known and visible lines and bounds. 
We all understand what this means. 

It is not necessary that the metes and bounds shall be 
actually set out in the paper, for if the paper relied on as 
color of title refer to the land as such and such a tract 
called, for example. Mount Yernon, and if the metes and 
bounds of such tract be known, this is sufficient. 

Keep liis Flag Flying. 

Again, the person in possession must claim the land as 
his own ; that is to say, he must put the real owner, if 
there be one, on guard, and by acts and conduct must 
notify him that his title is called into question. Or, as 
the books have it, he must " keep his flag flying." His 
possession, hence, must be open, hostile and continuous. 
Our courts have said that building a shed, quarrying 
rock, and cutting wood to burn' lime on the premises, 
uninterruptedly for seven years, made the holding adverse. 
But to feed hogs occasionally on the land did not. Nor 
did the occasional cutting of timber and quarrying stone. 
We will at once see that if a tenant is in possession of 
land, no matter how long he stays, his holding is not 
adverse to his landlord. 



Tfie Statute of Limitations^ Etc. 105 

Lamtiord and Tenant. 

The statate says that even if the tenant get a deed to 
the land from some other person, it is not colorable title, 
and will not avail him unless he stay in possession twenty 
years after his rental expires, or the last payment of rent. 

Tenants in Common. 

So if two are tenants in common of a tract of land, the 
one being in the actual possession and the other not, and 
the one in possession collect and appropriate all the rents 
and manage the whole land as his own and claims it as 
his land, still his holding is not adverse to his co-tenant ; 
but it would be adverse to another person. 

Continuous Possession. 

Finally, the period of such possession must be the seven 
continuous years preceding the action. But if the com- 
bined possession of several successive owners make out 
the seven continuous years under color it will suffice. 

Such possession as we have just described will not only 
bar another of his right to recover the land against us, 
but it will also actually build up a title, not otherwise 
good, in us. 

Indeed, such title is available for the plaintiff in an 
action. He cannot be in possession when he sues, but he 
might build up such title by previous adverse possession. 
We have many defective titles in our State at the present, 
*• and it behooves us all to look carefully to our title deeds, 
which are our muniments of title, otherwise the number 
will increase. 



106 Talks About Law— No, 19. 

Rules in Purchasing Land. 

Certain rules in purchasing land ought to be strictly 
adhered to : 

1. The title ought to be searched and examined by a 
competent attorney and abstracts made to accompany 
the deed. 

2. The deed itself should have apt words of conveyance, 
and should be in proper form. 

3. If purchasing land from a married woman, do not 
fail to pay the purchase-money to her in person, and to 
have her privy examination properly taken. In dealing 
with a married woman, unless she be a " mighty " good 
woman, be on your guard, for the law permits her to 
divide with you like the white man did with the Indian, 
when they came to set apart to each his share of the 
game, consisting of a turkey and a turkey buzzard. 

4. And mainly, no deed to a town lot should pass with- 
out inserting its dimensions in feet and inches and erect- 
ing natural objects to mark the corners, nor to a farm 
until a survey is made and tha lines are marked and the 
corners well established. 

Rule in Germany. 

I have read that in Germany all deeds to land are made 
directly by the government. When a man wishes to sell 
his land he yields up his title deeds to the government, 
and the government executes a new deed to the proposed 
purchaser. They rarely have a defective title in Germany. 
We cannot do this, and should not, but we can at least 
learn a lesson therefrom. 



Notes and Bonds, 107 



NUMBER TWENTY. 



NOTES AND BONDS. 

Laymen, by which is meant everyone except lawyers, 
have a fair knowledge of many departments of the law. 

But with the general principles that govern and con- 
trol negotiable instruments, commonly called bills, bonds 
and notes, they have a scant acquaintance. 

Such knowledge no man of aflfairs can aflford to be 
without. A mistake here is often vital. 

Danger in Signing Notes. 

Every farmer should write and place these words above 
his hearthstone: "If I sign any note, the law will make 
me pay it if some innocent person has bought it before 
due ; and this, even if I received nothing on the note, or 
even if I was forced to sign it, or if it was a gross fraud 
on me." 

This sounds like hard law, but it is necessary to protect 
society, and is the wisdom of the ages. 

Nor do the principles laid down above apply to any 
paper or property other than negotiable instruments. 
Let us see : If a man steal your horse and sell it, you 
can claim your horse in anybody's hands. No matter 
that the purchaser has paid fuU value for the horse and 
had no knowledge that it was stolen, it is your horse and 
the purchaser's misfortune. 



108 Talks About L(jm—No. W. 

A Courier Without Luggage. 

But if a note be stolen and transferred by the thief to an 
innocent person, in the usual course of business, before due, 
and for value, the person so acquiring the note may hold 
it against the world. As a wise Judge once said, a note 
" is a courier without luggage.'^ 

Wliat Negotiabiiity IMeans. 

" Negotiability " means three things : 

1. That the title is in the innocent holder of the note. 

2. That you, who gave the note, cannot set off any- 
thing against such holder. 

3. That you cannot show, as against such innocent 
holder for value, that there was no consideration for the 
note. 

Ignorance of these three principles brings woe to many 
unsuspecting persons ; and knowledge of thera is putting 
money in the purses of many sharpers. 

Patent Fence, Bee-Hive, Cliurn-Notes. 

Let us apply these principles to some cases decided in 
our State. But it will scarcely be necessary to go to thfe 
books for illustrations, for the images of churn-notes, and 
wire-fence notes, and bee-hive notes, and other patent 
notes, come trooping before many of us to our sorrow. 

Mr. Tillery, down in Halifax, one fine day, is at his 
place of business. Fink comes in. For one hundred dol- 
lars Fink will give a formula by which lubricating oil 
may be made at half cost. The trade is made. Tillery 
gives his note at ninety days for $100. Fink pockets the 
note, jumps into his buggy, saying, '•'Mix a white sub- 



Notes cmd Bonds. 109 

stance with ordinary oil in proportions of one-half each," 
and oflf he goes. Before the ninety days are out, Fink 
sells the note to Mr. Applegarth. Applegarth sues Til- 
lery on the note. " No," says Tillery, ^' it was a fraud ; 
I won't pay it." But our Court said, " The mere fact 
that the payee of the note may have perpetrated a gross 
fraud upon the defendant in obtaining the note from him, 
cannot affect the course of justice," and Tillery had to 
pay the one hundred dollars. 

A Hard Case. 

Now we will examine a case " harder " than the fore- 
going. 

In Eowan County in 1885, Mr. Michael bought a tract 
of land. He lacked $750 of paying for it. He executed 
his note for $750 to the vendor. 

Before the note fell due a bank acquired it. Michael 
did not know this fact, and paid the vendor the $750. 
Afterwards the bank sued Michael. "Why," said he, 
" I have already paid that note." " Not so," says the 
Court, " the bank owned the note when you paid it ; and 
it is your folly to have trusted a dishonest man." 

Don't Pay Until Yon See the Credit Put on the Note. 

This case teaches another lesson of great value to men 
who owe money on notes, to-wit : Never pay anything 
on a note until the credit is entered on the note itself. 

A Receipt Unsafe. 

A receipt will not do in all cases ; for your very receipt 
would not be good against your own note in the hands 



110 Tal.1c8 About Law— No. 20. 

of an innocent purchaser if bought before due, as already 
explained. So well are these things known to the agents 
who sell patent rights, and to some others, that they dis- 
count all notes as soon as may be and at the nearest bank. 

Buying a Pig in a Bag. 

A curious case once fell under my observation. 

A man died supposed to be wealthy. His lands were 
sold by his heirs at law, within two years, to Mr. Greene, 
of Yance County. Mr. Greene paid all cash but $2,000. 
He gave his not^ for $2,000 due in one, two, three and 
four years. The executor sold his notes before they fell 
due. Then it was found that the estate was insolvent. 
Greene's land was needed to pay the debts of the estate. 
So Greene must inevitably have lost his land, all the cash 
he had paid, and have had the $2,000 to pay on his notes ; 
but the case was compromised. And now Mr. Greene 
signs no more notes. 

Verily, a note, like a dollar bill, passes from hand to 
hand, and when you put your name to one you will have 
it to pay if you are able. 



Religious Societies, 111 

NUMBER TWENTY-ONE. 



RELIGIOUS SOCIETIES. 

Their Property Limited. 

It may not be generally known, but it is the law of 
North Carolina that no one religious denomination can 
own lands, by the general law of the State, of a greater 
yearly value than six thousand dollars , nor can any sin- 
gle congregation own lands of a greater yearly value than 
four hundred dollars. Of course this does not apply to 
lands and lots set apart and appropriated to divine worship. 

Tlie Reason. 

None but a student of the law will understand this 
seeminglj'^ harsh statute. Away back, ten centuries ago, 
the monasteries in England were very rich and powerful. 
They began to absorb the lands of the whole kingdom, 
and hence the Parliament made it a cause of forfeiture for 
any one to give or sell lands to a religious corporation. 
Our North Carolina statute is the scar which remains upon 
that old wound. 

Gifte Upheld by Uw. 

We have in our Code a very wise and beneficent pro- 
vision that all glebes, lands and tenements, heretofore 
purchased, given or devised for the support of any par- 
ticular ministry or mode of worship ; and all churches and 
other houses built for the purpose of public worship, and 
all lands so given to any church or religious society or 



112 Talks About Law— No, 2L 

congregation, shall be and remain forever to the use of 
such church, society or congregation ; and further, that 
the estate thereto shall be deemed and held to be vested 
absolute in such trustees for the uses expressed in the 
deeds of purchase or of gift ; and in case there shall be no 
trustees, then in the said churches, denominations, socie- 
ties and congregations respectively, according to such 
intent. 

From the above it may be seen that a gift to a church 
will be upheld by our Courts, even if the giver does not 
know and express the names of the trustees ; or even if 
he does not name any trustees, but simply names the 
denomination. 

But it must be borne in mind that no church can own 
lands of great value, as we have seen above, unless it have 
a charter so to do from the Legislature. So, full power 
is given to any church or society to elect trustees, who 
shall have power to receive donations and to take and 
hold property, real and personal, by purchase or by gift. 
How Churches May Sell or Mortgage Lands. 

We were doing pretty well in North Carolina without 
any provision in the general law authorizing a church, 
through its agents, to sell any lands or to mortgage the 
church building until the year 1885. In that year it was 
provided by the Legislature that, if a majority of the con- 
gregation so vote, the church may mortgage its build- 
ing and borrow money to improve the building. 

Whether w(3 have arranged a box of Pandora, to be 
opened in the hereafter, remains to be seen. Many fine 
churches at the North have been sold under mortgage, 
and are now used for storage-houses, I learn. 



Religious Societies. 113 

Trustees not Individaally Liable. 

These trustees simply act for the church, and as long 
as they do their duty, they are not liable personally unless 
they contract personally. For example : A man who was 
injured in erecting a church building recently, sued the 
building committee for damages ; but our Court said that 
they were not individually liable. 

Disturbing Services a Crime. 

Many statutes have been passed for the protection of 
churches against disturbances while services are going on 
in the church. It is made a misdemeanor for any one to 
exhibit any natural or artificial curiosity in half a mile of 
a church during religious services. 



114 Talks About Law — No. 



NUMBER TWENTY-TWO. 



FIRE INSURANCE. 

Prudent Men Insure. 

A large proportion of the dwellings in North Carolina 
are, doubtless, insured against Ipss by fire in some tire 
insurance company. Prudent men, nowadays, almost 
always carry some insurance. 

Void Insurance. 

It will, perhaps, be within the mark to say that in a 
fourth of the cases in which insurance is carried, if a fire 
were to occur, nothing could be recovered under the policy. 
And why ? Because some of the numerous matters exist 
which avoid the policy. 

Now take down your fire insurance policy, which per- 
haps you have never read, and read it over, not omitting 
the fine print. In most of the policies it will be seen that 
the following matters, among others, are named in the 
policy as 

Avolding^the Policy. 

(1). Any material fact in writing not correctly repre- 
sented ; 
* (2). Overvaluation of the property ; 

(3). Subsequent insurance without permission ; 

(4). If, being personalty, it is removed without per- 
mission ; 

(5). If property be changed so as to increase risk ; 



Fire In»ur€mce, 115 

(fi). If the property be sold ; 

(7). If policy be assigned ; 

(8). If title to property be changed in anyway ; 

(9). If assured be not sole owner of property ; 

(10). If interest of insured in property be not properly' 
stated; 
^ (11). If building be and remain unoccupied ten days; 

(12). If fireworks, benzine, petroleum, nitro-glycerine, 
more than twenty-five pounds of gunpowder, or more 
than one barrel of kerosene oil be used or kept on the 
premises. 

Quite a long list. And even in case of fire, there being 
nothing to avoid the contract, the company is not answer- 
able if such fire occur by reason of riot, or insurrec- 
tion, or from lightning, or by reason of a wind, cyclone 
or tornado blowing down the building. 

Suit Brought in Twelve Montlis. 

To which should be added the further condition that 
suit must be brought within one year after the fire; and, 
in case of fire, the company has the option to replace the 
building, or to pay three-fourths of the face of the policy, 
provided the property is worth the insurance; and if not 
w^orth the amount of the insurance, then three-fourths of 
its cash value. 

Some of the conditions in contracts of insurance our 
Courts have held to be void as against public policy. For 
example. No. 2 above. If one overvalue his property, 
this will not avoid the contract, unless the overvaluation 
is fraudulent and intentional. 



116 Talhs^ About Lcm—No. %^. 

And so, perhaps, No. 12 ; the mere having any pro- 
hibited explosives on the premises would not avoid the 
contract, unless such explosive caused the fire. Let us 
illustrate by means of a few examples : 

Other Insurance Not Disclosed. 

Mrs. Sugg insured her dwelling, and after that time 
took out other insurance without notifying the first com» 
pany. As a matter of fact she did not think of it, and 
had no intention to injure the insurance company. But 
our Court said it was so written in the contract. So Mrs. 
Sugg received no insurance money when the house burned. 
See No. 3 above. 

Insured Does Not Own the Dwelling. 

So take Nos. 6, 8, 9, 10 above. The contract which 
one makes with an insurance company to the effect that 
he is the sole owner in fee of the property proposed to 
be insured, and that there are no incumbrances on it, is 
binding on the insured, and an error in either of these 
particulars avoids the contract. 

Mr. Cuthbertson, in Union County, after his building 
was burned, sued the compan^^ and it appearing that he 
ignorantly signed an application for insurance in which 
he stated that he owned in fee the la.nd on which the 
house stood, whereas, in truth and in fact, he had built 
the house on land leased by himself, he did not recover on 
his policy. 

Mortgage on Dwelling. 

A dwelling recently burned in Oxford, upon which 
were several mortgages, all unknown to the company in 



Fire Insurance. 117 

which insurance was taken. The owner did not know 
that he had no right to mortgage his house, after taking 
out insurance on the same, without permission of the 
company. Of course, he was entitled to nothing after 
the dwelling burned : but the company generously com- 
promised with him and paid something. 

Dwelling Vaeant Ten Days. 

How many men know that they ought not to suffer their 
insured residences to be vacant ten days without a "per- 
mit " from the company ? And yet, no doubt, if a fire 
occurred after the ten days and while the insured property 
was still vacant, no insurance could be recovered. Of 
course, this is on the supposition that the policy requires 
that the house shall be occupied. It would then be, no 
doubt, a "continued warranty." 

Such clauses are not inserted in policies of insurance 
taken on barns, stables and other houses not intended to 
be occupied. In these cases the rate of insurance is 
higher generally than when the building is occupied. 

Former insurance, Approximated. 

Now, in a case that Hornthal & Bro. brought against 
an insurance company, it appeared that the insured made 
an approximation of the amount of their previous insu- 
rance to the agent of the defendant company. It also 
appeared that the company was not correctly informed by 
the agent. But our Court said that the plaintiffs, in these 
circumstances, ought to recover on the policy. 



118 Talks About Law— No. 22. 

Chanoing insured Property. 

Let us consider Section 5 above. Suppose that after 
insurance is efifected, the insured property is altered so as 
to increase the risk. That is to say, suppose that another 
building is placed so near as to be within the fire limit ; or 
that the pipes are run into the sides of the dwelling instead 
of into well secured flues or chimneys ; or suppose, indeed, 
that the dwelling is greatly added to or enlarged without 
permission, and such addition increases the risk, in case 
of a fire, under these changed conditions, perhaps no 
damages could be recovered. 

Get the Company's Permission. 

In fine, no man ought to mortgage or otherwise en- 
cumber his insured property ; or take out additional 
insurance on the same; or add to it; or carry explosives, 
&c., on the premises ; or permit a house that is insured 
as a dwelling to remain vacant more than ten days with- 
out permission from the company carrying the insurance. 

Ligtitning Clause. 

When applying for insurance, if it is asked of the agent, 
he will attach a " lightning clause " to the policy, by the 
terms of which, in the event of fire by lightning, the 
company is liable. 

Asties. 

Sometimes, if not always, the insured agrees that the 
ashes shall be properly secured or emptied a safe distance 
from the dwelling. In the event of a fire, because of 
failure to comply with this agreement, the company 
would not perhaps be answerable. 



Fire Insurance, 119 

Suit in a Year after Fire. 

The statement and agreement that suit shall be brought 
within one year after the fire, is not a statute of limita- 
tion. But it is a binding contract. And if a party 
delays to bring suit more than one year, and the delay 
be not caused by the act and conduct of the company, 
perhaps the insured could not maintain his suit. 

So that, on the whole, it is to be observed that people 
should exercise great care in matters pertaining to insu- 
rance, for the contracts of insurance companies are not 
illy drawn. 

Your void policy of insurance and your last year's 
almanac are equally valuable. 



120 Talks About Loajo—No, 



NUMBER TWENTY-THREE. 



THE LAW OF PARTNERSHIP. 

What is a Partnership? 

The combination of capital or labor or skill by two or 
more persons for the purpose of business and for their 
common benefit, is the definition of a partnership. 

Limited Partnership. 

We sometimes see after the name of a firm the word 
"limited." This means that the liability of certain part- 
ners is limited to the amount of capital put into the busi- 
ness by them. 

For it is well known that if one be a general partner in 
any business, he is liable for the debts of the firm even to 
the extent of his entire individual estate. 

Partner Without Knowing it. 

Sometimes one becomes to be and is_ a member of a 
partnership when he does not really know it, and indeed 
does not desire it. For example, we read in the books 
that a man owning certain buildings, agreed with another 
man that each would put two hundred dollars into the 
mercantile business, that the latter would conduct the 
business, and that the former would get no rent except 
one-half the profits of the concern and no other interest 
in the business. Of course the owner thought that he was 
no partner, and yet he was held by the Courts to be such. 



The Law of ParPnership, 121 

Use of One's Name. 

Again, one may become a partner when he does not 
put any money or other thing into the concern, but sim- 
ply permits the use of his name. Having one's name 
printed on the sign or on the envelopes and letter-heads, 
or on the delivery wagon of the firm ; or indeed holding 
one's self out to the public in any way as a partner will 
fix the relationship on one. 

Silent Partner. 

A silent partner is one who furnishes capital, but is not 
active in the business. The reason why one who partici- 
pates in the profits is fixed by the law with this relation- 
ship of partner is because it would be a fraud on the 
creditors to permit the profits and assets to be taken from 
them by a person who proposes to gain all and risk nothing. 

Are Undlord and Tenant Partners ? 

Our Courts at first held that the landlord and his tenant 
were partners in the usual case of the landlord '' running" 
the tenant and "going halves" in the crop. Such ruling 
would have greatly injured agriculture. Very soon the 
opinion was overruled. The statute says expressly that 
they shall not be so considered. 

Partnership in Attiance Store. 

Recently " The Sampson County Alliance Store," Mr. 
Clute its manager, purchased fertilizer of the Durham 
Fertilizer Company. Failing to pay for the same, it was 
sought by suit to hold about twenty farmers liable as 
partners in the concern. But our Court held that as the 



122 Talks About Lcm—No. 23. 

County Alliance had accepted the provisions of Chapter 
105 of the Private Acts of 1889, and the Alliance store 
was operated under the provisions of that act, the con- 
cern was a corporation, and the farmers not partners, and 
hence not liable. But for that act of the Legislature, they 
would have been liable. 

Test of Partnership. 

For quite a while it was held by the English Courts that 
participation in the profits of a concern constituted the 
participant in all cases a partner. And this is now the 
rule, except in cases where, under the contract, the profits 
are looked to as a means of ascertaining the compensa- 
tion to be paid. 

And even in these excepted cases, the margin is so nar- 
row that it is quite dangerous for one to accept a part of 
the profits unless he is also willing to be a member of 
the firm. 

Consequences of. 

What are some of the consequences of the formation of 
a partnership? Why your partner has as much right to 
contract debts, in the course of firm business, and bind 
the firm as you have ; and if he make such a contract, it 
will bind you, although he agreed not to make any debt 
without your consent. He can sign the firm name to 
notes. He can do anything in the course of the firm 
business authorized by the contract of partnership. 

Sometimes Bound by Partner's Unlawful Act. 

Indeed, if your partner were to do any unlawful act, in 
pursuit of the firm business, you would be answerable in 



The Law of Partnership, 123 

damages, in many cases, although not present at the time 
and not consenting to the same. As we have already 
seen, in the event of a failure, your property as well as 
the firm property is bound for the firm debts. After the 
creation of the partnership, good faith is required on the 
part of all the partners. 

How Pttt an End To. 

And if any partner violate the contract of copartner- 
ship in an essential particular, and thereby render it 
impossible to carry on the business, equity will dissolve 
the same and place the whole property in the hands of an 
oflBcer of the Court called a receiver. So the permanent 
insanity of a partner is a cause for dissolution. 

Death of a Partner. 

Or the death of a partner ; in which last event the sur- 
viving partner or partners alone conduct the business. 
Such surviving partner cannot continue the business per- 
manently ; but he may contract new debts, binding on 
the firm, if necessary to finish up or complete some work 
begun by the firm before the death of such member. But 
only in like cases may debts, be contracted binding the 
firm after the death of a partner. 

Partner Carrying on a Rival Business. 

If a partner agree to give all his time to the firm busi- 
ness, and, instead, carry on a rival business, he may be 
made to divide the profits of his new undertaking with 
his partners. 



124 Talks About Law— No. ^S, 

Firm Property Cannot be Used to Pay Individual Debts. 

Nor can a partner use the firm assets to pay his indi- 
vidual debts. This would be a fraud on the creditors of 
the firm; and thereafter the firm could recover the 
amount so misappropriated. 

Secret Partner. 

Sometimes one man will be a secret partner in a firm ; 
and perhaps goods will be sold to the concern, and at the 
time of the sale this fact will be unknown to the vendor ; 
even in these circumstances, when credit is not extended 
on the strength of the name of the secret partner, he will 
be liable. 

Old Firm Answerable for Debts of New. 

Another apparent peculiarity about a partnership is the 
fact that after it has been dissolved or ended by mutual 
consent, if goods are bought in the old firm name from 
parties in the habit of trading with the firm, the retired 
partner is still answerable unless the fact of the dissolu- 
tion is brought to the knowledge of the party selling the 
goods. 

What Notice of Dissolution Necessary. 

Nor will a notice of dissolution put in a newspaper be 
sufficient to prevent a recovery, unless it is brought to 
the actual attention of the party. Just such a case arose 
in Kaleigh a few years ago. The firm had dissolved. 
Notice had been put in the papers. Thereafter, goods 
were purchased in the old firm name of parties who had 
no knowledge of the dissolution. The retired partner 
was held liable. 



Tfie LoAJO of Partnership. 125 

Justice of the Peace Cannot Try Partnership Cases. 

Winding up a partnership by the process of the Courts 
is an equitable proceeding. Therefore Justices of the 
Peace cannot try cases of this kind. Nor can one partner 
sue another partner in the court of a Justice of the Peace 
during the continuance of the partnership. 

Statute of Limitations Does Not Run Between Partners. 

As between the partners themselves, no statute of limi- 
tation runs until the debts are all paid and the aflfairs are 
settled, after which they are not partners. 

As we have heretofore seen, the statute does not run 
against one occupying a confidential or trust relationship 
to another, until something has been done to render the 
relation adverse. 

insolvent Member of Solvent Firm. 

Suppose that an insolvent person were a member of a 
solvent firm, might the creditors of the insolvent man 
sue the firm ? Not at all. But by proper proceedings, 
no doubt, the creditors might ask a court of equity to 
wind up the aflfairs of the partnership, and, after paying 
all debts, to apply the proceeds belonging to the insolvent 
member to the demand of the creditor. 

Illustration of. 

A very interesting discussion appears in the 71st Ke- 
ports. It was claimed that Mr. McDowell owed Sloan 
& Co. a debt. Also, that when McDowell contracted the 
debt, he had an understanding with Mr. Sloan that the 
articles bought should be credited on an individual bond 



126 Talks About Lorn— No. 2S. 

of McDowell's against Sloan. Finally, Sloan & Co. sued 
McDowell. McDowell set up the above facts and asked 
judgment against Sloan. The Court said that he was 
entitled to it. Say the Court in substance : The general 
rule is, that a claim of a defendant against one party is not 
a set-oflf against a claim of the partnership against him. 

But there are four exceptions to the rule : 

(1). Where a partnership agreed to it. 

(2). Where the partnership has been settled, and a 
surplus in favor of the defendant. 

(3). Where the indebted partner is insolvent, outside of 
bis interest in the partnership. 

(4). Where one partner only agreed to it. But this last 
exception is really not good, in the light of subsequent 
decisions, and in the argument of the Court in Sloan's case. 

Limited Partnership— How Formed. 

We spoke in the beginning of a limited partnership. 
In our State one may be a limited partner in any concern. 
To do so, however, he must comply with the law as laid 
down in Yol. II of The Code, chapter 31. 

Among other things, the contract of copartnership 
must be registered so as to give notice to the world. The 
amount to be paid in must be stated on oath, and all the 
other formalities of the law must be strictly complied 
with. On the whole, from what we see in the Courts, we 
may remark of a general partnership that it ought not to 
be lightly entered into, but seriously, soberly and dis- 
creetlv. 



Banks. 127 



NUMBER TWENTY 'FOUR. 



BANKS. 

Individual Liability. 

We will presently see that if a party of men open a bank- 
ing establishment and take out no charter, they are simply 
a copartnership. As such they are governed by the law of 
partnership. So far as the public are concerned, all deal- 
ings with a copartnership are not different to such deal- 
ings with an individual as a general thing. But just so 
soon as a charter is obtained and a corporation is organ- 
ized, subtle rules and laws, and quite unknown to the pub- 
lic, govern and control that institution. 

For example: John Smith, an individual, and the same 
John Smith, constituting a corporation, are quite different 
persons. John Smith, an individual, will, no doubt, buy 
with care and will contract debts with care; but the 
"John Smith Company," a corporation in which John 
has no individual liability, that will undertake almost any- 
thing ; no venture is too hazardous for it, in many instances. 

How Organized. 

Let us see how the corporation is organized : 
First, the Legislature grants a charter. Then the pro- 
moters of the bank meet and formally accept the charter. 
After certain preliminaries are gone through with, a com- 
mittee is appointed to open stock-books. Say that the 
capital stock is put at $100,000. Shares of stock are, say, 
one hundred dollars each. Each person who subscribes 



128 Talks About Loajd—No. 2^, 

for a share of stock is thenceforth a stockholder in the 
bank. As such, he can vote at all meetings of stock- 
holders and has other privileges and duties. At a meet- 
ing of the stockholders voting is always by a "stock 
vote." Sometimes one man will himself, and as proxy, 
cast a majority vote over twenty other men who are 
present as stockholders. 

Having subscribed for stock, the person is required to 
pay the par value of the same into the company. If he 
fails to do so, any creditor may, under certain circum- 
stances, make him" pay the full amount of stock sub- 
scribed. In a word, the stock of the company is assets, 
just as any other property which the corporation may own. 

Finally the whole amount of stock is taken. Now, 
evidently all the stockholders cannot be present each day 
in the bank to supervise the business. Each day loans 
are to be made, money collected, paper discounted, checks 
on other banks cashed, securities carefully inspected and 
passed upon, and the whole policy of the institution 
shaped. Some one must do these things. 

Directors. 

So the stockholders have a meeting and elect all officers 
for the bank. Among others, they elect "directors." 
There are of these, say, seven. And a " discount com- 
mittee " is also appointed. The duties of these officers 
are indicated by the names they bear. The directors are 
trustees. They act as agents of the stockholders. Under 
their care and keeping the bank is placed. 



Banl's. 129 

Capital Stock. 

Now, the bank is fully organized for business. The 
"capital stock" of $100,000 is paid into the bank. This 
is a part of the working capital of the bank. But they 
have other capital with which to operate. 

Deposits. 

This consists of " deposits." 

Any person having money which he does not think safe 
or advisable to keep at home, carries the same to the bank 
and deposits it there. If the money remain only a short 
time, no interest is paid. If it remain several months, a 
small rate of interest is sometimes paid. The relation of 
a depositor to a bank is simply that of creditor. 

Indiviftual Liabilities Again. 

In the event of a failure of the bank, of course all credi- 
tors are to be paid first, and if anything remain, it goes 
to the stockholders. Now, if no individual liability clause 
exist in the charter of the bank, the creditor cannot look 
to any member of the corporation individually ; he must 
collect his debt, if at all, out of the assets of the corporation. 

Direetors May^be Liable. 

But it will be observed that the directors of the bank 
occupy a closer relation towards the concern than any 
other stockholders, and in certain circumstances, if there 
has been a breach of trust, they may be called upon indi- 
vidually to answer for such bad conduct, and, it may be, 
to make good all losses. 
9 



130 Talks About Law— No, '2i, 

" There can be no doubt that if there be actual fraud 
on the part of the directors, and the bank fail because of 
the same, the directors will be individually liable." 

"A topic of greater doubt and deeper interest is, how 
far will the law enforce judicious management upon direc- 
tors, and hold them responsible when there is no charge 
of fraud, no suggestion of intentional mismanagement, 
but the complaint is of mere easygoing carelessness ? Sup- 
pose that in a bank, well-meaning directors hold meetings 
now and then ; some attend and others do not ; a report 
or two is heard ; an order or two are made ; all details are 
left to subordinates; and so business proceeds until some 
day there is a defalcation or a robbery (or a collapse) from 
mere failure to prescribe and enforce strict rules. Have 
the losers any remedy against directors for feebleness in 
executive management?" 

Decisions Not Harmonious. 

The decisions on this subject are numerous and conflict- 
ing. It is always best to have the measure of liability of 
directors regulated by the charter or by the by-laws in 
advance, and then if a failure comes, there can be no doubt 
about the responsibility. 

The object of the writer in touching upon these subjects 
will be fully attained if the great, innocent public are 
brought to an awakening of the importance of a knowl- 
edge thereof. 



Corjxyt'ations. 131 

NUMBER TWENTY 'FIVE. 



CORPORATIONS. 

What is a Corporation 7 

A corporation is said to be an "artificial person." So 
numerous and important have corporations become, that 
all men should have some general knowledge of them. 

How Created. 

How does a corporation come into existence? In one 
of two ways: either by the act of the Legislature or 
else by the order of the Clerk of a Superior Court. A 
Clerk can grant any charter except to a railroad company 
or to a bank. The Legislature alone can grant charters 
to them, but the Legislature also has concurrent power to 
incorporate any other company. 

Advantages to the incorporators. 

Let us suppose that Mr. Cheery ble and six of his wealthy 
friends wish to venture in a banking scheme. Now they 
could, if they wished, form a copartnership, and not obtain 
any charter. 

But there would be many objections to this course. In 
the first place, if one of the partners were to die, the con- 
cern might be put to trouble with his estate. Again, a 
copartnership is not permanent, it is a personal affair, 
depending upon the mutual good-will of the partners. 
And lastly and mainly, if a copartnership becomes involved 
in debt, each partner is individually liable, that is to say, 



132 Talks About Law— No, 25, 

his whole estate is responsible for the debts of the firm 
generally. 

Not so with corporations. " They are to be commended,'^ 
said my Lord Coke, " in that they secure the best learned 
counsel." They have a charter carefully drawn up, and 
by the terras of that charter, and by that alone, they stand. 

Individual Liability. 

The Legislature of North Carolina have endeavored, 
during many years, to grant no bank charters without 
inserting a clause that the stockholders are individually 
liable, at least to the amount of the stock that they take. 
But many charters will be found in which there is no 
such clause. 

The Bank Breaks. 

Take the case, then, of Mr. Cheery ble and his six friends. 
They obtain such a charter, and open the "Cheeryble 
Banking House." The credit and reputed stability of the 
bank attract a long line of deposits. Finally, the day of 
reckoning comes, and the institution closes its doors. The 
public find the mere rind of the cheese; the heart has 
some time since been consumed. Subsequent stockholders 
lose all and innocent depositors lose half their deposits. 
Such things transpire around us often. 

National Banks. 

The stockholders of each national bank are individually 
liable to creditors to double the amount of stock taken. 
That is to say, not only is the stock of each holder assets 
for creditors, but also each stockholder must pay an 



Corporations, 133 

additional sum out of his own pocket. This is a great 
protection to the public. 

Now, in the case supposed of the Cheery ble Banking 
Company : The depositors might lose half or more than 
half of all moneys deposited with the bank, and yet the 
owners of the bank be not liable out of their own indi- 
vidual funds for any part of such loss. There might be 
cases in which the directors of the bank, if guilty of fraud 
or imposition or of gross and wilful carelessness in man- 
aging the bank, would be individually liable to creditors. 
Of this we have written in our last chapter. 

Ought a Bank be Chartered Without the Individual Liability Clause 7 

But would it not be fair, wise and just, both to banking 
institutions and certainly to the public, if the Legislature 
were to refuse to charter any more banks except such as 
rendered all stockholders individually liable to creditors? 
Would it not greatly increase deposits ? 

Banks are quite indispensable to commerce. If it were 
felt and known by the public generally that our banks 
were as secure as the old stocking tied up and carefully 
deposited in the bottom of the old " chist ; " many a rusty 
silver dollar and many a quaint gold piece that have not 
seen the light of day in years, would begin to flow in the 
sweeping channel of trade. 

Indeed, one of the disastrous features of the recent 
money panic will be loss of confidence and the correspond- 
ing hoarding of money at home. 

Be it said to the credit of the South that we have better 
stood the financial panic than any section of the Union. 



134 Talks About Law— No, ^6, 



NUMBER TWENTY-SIX. 



LAWYERS. 

A quaint old friend used to say to me that lawyers often 
got the reputation of being liars because the clients saw 
their own image reflected in the lawyer's utterance. 

At this time, there being no controversy as to whether 
a lawyer can be an honest man, we will consider the duty 
and the importance of the office of an attorney-at-law. 
We say "office" because a lawyer is an officer of the 
Court. He takes an oath as such and he obtains license 
to practice. 

Duty to Encourage Peace. 

One of the prime duties of a lawyer is to discourage 
strife and to encourage peace and good feeling. One 
client infuriated and mulcted in costs because of wilfully 
bad advice will permanently injure the reputation and the 
earning capacity of the most successful lawyer. Mr. 
Counsellor Pleydell, indulging in the pastimes of High 
Jinks and receiving Colonel Mannering and Dandie Din- 
mont, the doughty Scotchman, was an honor to the pro- 
fession, albeit a trifle convivial. 

" Now, you looby," said the lawyer, " say in two words 
what you've got to say." 

"Aweel, sir," said Dandie, not a whit disconcerted by 
the roughness of the reception, " We're at the auld wark 
o' the marches again, Jock o' Dawston Cleugh and me. 
Ye see we march on the tap o' Touthop-rigg after we pass 



Lawyers, 135 

the Pomoragrains ; for the Pomoragrains and Slacken- 
spool and Blood ylaws, they come in there and they belong 
to the Peel ; but aftep ye pass Pomoragrains at a muckle 
great saucer-headed, cutlugged stane, that they call 
Charlies Chuckie, there Dawston Cleugh and Charlies- 
hope they march. Now, I say, the march rins on the tap 
o' the hill where the wind and water shears ; but Jock o' 
Dawston Cleugh again, he contravenes that, and says that 
it bauds down by the auld drove-road that gaes awa by 
the Knot o' the Gate ower to Keeldarward — and that 
makes an unco difference." 

"And what difference does it make, friend ? " said Pley- 
dell. " How many sheep will it feed? " 

" Ou, no mony," said Dandie, scratching his head ; " it's 
lying high and exposed — it may feed a hog, or aiblins twa 
in a good year." 

'*And for this grazing, which may be worth about five 
shillings a year, you are willing to throw away a hundred 
pound or two ? " 

"Na, sir, it's no for the value of the grass," replied 
Dinmont, " it's for justice." 

" My good friend," said Pleydell, "justice, like charity, 
should begin at home. Do you justice to your wife and 
family, and think no more about the matter." 

" Dinmont still lingered, twisting his hat in his band — 
" It's no for that, sir — but I would like ill to be bragged 
wi' him — he threeps he'll bring a score o' witnesses and 
mair — and I'm sure there's as mony will swear for me as 
for him, folk that lived a' their days upon the Charlies- 
hope, and wadna like to see the land lose its right." 



136 Talks About Law— No. '26, 

" Zounds, man, if it be a point of honor," said the law- 
yer, " why don't your landlords take it up ? " 

" I dinna ken, sir" (scratching his head), " the lairds are 
unco neighborly, and Jock and me cannot get them to 
yoke thegither." 

'' Confound you, why don't you take good cudgels and 
settle it?" 

" Od, sir," answered the farmer, " we tried that three 
times already, * -J^ -J^ we're baith gey good at single- 
stick, and it couldna weel be judged." 

" Then take broadswords, * * * as your fathers 
did before you," said the counsel learned in the law. 

"A weel, sir, if ye think it wadna be again the law, it's 
a' ane to Dandie." 

" Hold ! hold ! " exclaimed Pleydell, " we shall have 
another Lord Soulis' mistake — Pr'y thee, man, comprehend 
me ; I wish you to consider how very trifling and foolish 
a lawsuit you wish to engage in." 

"Ay, sir," said Dandie, in a disappointed tone, " So ye 
winna take on wi' me, I'm doubting ? " 

'^ Me ! not I — Go home, go home, take a pint and agree." 

Pley dell's success as a lawyer is not to be wondered at ; 
nor are his descendants all dead yet; and many a Dandie 
Dinmont survives, as our Court calendar abundantly 
attests. 

High-Toned Morality Required. 

Says a great Judge : " There is no profession, after that 
of the sacred ministry, in which a high-toned morality is 
more imperatively necessary than that of the law." Nor 



Lawyers, 137 

is there any profession in which success and real worth 
are more often synonymous. No man can rise without the 
confidence and good opinion of the members of his ovvn 
profession, " like the King's name on the field of battle, 
it is a tower of strength ; it is the title of legitimacy." 

Examples of Great Lawyers. 

Perhaps people generally are disposed to look upon the 
profession of the laAv as one that does not tend to ennoble, 
because lawyers espouse either side of any cause, depend- 
ing upon the mere question of which side first secures his 
services. To simply call the roll of those men who have 
been foremost in human endeavor and whose names are 
written highest in liberty's story will refute the insinuation. 

Of Presidents of the United States all but four were 
lawyers, and up to 1843 eighty-two of the peerages of 
England, we are told, sprung from the law. A Henry 
exclaiming, "If that be treason, make the most of it" ; a 
Mansfield almost divinely adjudicating that the air of 
England is too pure for a slave to breathe ; a Marshall 
welding the Union together by declaring it to be an 
indestructible Union of indestructible States ; the great 
Commoner, defying the Throne, cheering the fainting 
cause of liberty, " If I were an American as I am an Eng- 
lishman, while a foreign foe were on my soil I would never 
lay down my arms — no, never, never ! " and Curran and 
Grattan and Plunket and a host of Irish patriots, sound- 
ing the depths of poverty and danger in behalf of oppressed 
innocency — these are a few of the lawyers' title deeds to 
greatness. But if our inheritance is great, our responsi- 
bility is greater. 



138 Talks About Law— No, m. 

Why he Should Defend in any Case. 

But there are weighty reasons why a lawyer shall 
appear on either side of any civil cause and for the defend- 
ant in any criminal cause. The State has able counsel to 
prosecute in criminal cases, and no man ought to under- 
take the prosecution except where the case is plain. 

Suppose that Lawyer Jones were to refuse to appear 
for a prisoner in a case if he thought him guilty. Then 
suppose that all the other lawyers were also to refuse, 
what would be the result? Why, practically, the lawyers 
would be the jury. Every man is entitled to a fair trial 
according to the law of the land. 

Wife Changes Her Opinion. 

We once heard a slander of the good wife of a lawyer. 
A man was charged with brutally murdering his wife. 
The lawj'^er was employed to defend. Going home that 
night, the lawyer's wife was quite surprised that her hus- 
band would represent such a brute. After much talk the 
lawyer said, "Well, my dear, he has just paid me a thou- 
sand dollars, and with part of the money I bought you a 
seal-skin cloak, but as you object, I will return the fee 
and countermand the order for the cloak." She was 
touched^ and replied : " I believe I would say a word for 
the poor fellow ! " 

Poorest Paid of Any Class. 

Considering the money expended in educating one for 
the practice of law, the cost of books, and a certain style 
which is required of all lawyers, they are the poorest paid 



Lawyers. 139 

class of our citizens. Poverty is one of their badges of 
distinction. " He lived easy, he worked hard, he died 
poor," is the epitaph over most of their graves. To some, 
attaining judicial office, may Wolsey's prayer be not 
inapplicable : 

**Mayhe * ♦ * do justice. 
For truth's sake and his conscience ; that his bones, 
When he has run his course, and sleeps in blessings, 
May have a tomb of orphans' tears wept on him." 



140 Talks About Law— No, '27, 



Number Twenty-Seven. 



SUNDAY. 

The Statute. 

In the year 1676, while Charles II was King of Eng- 
land, the original statute relating to observance of Sunday 
was passed. In the year 1741, the same act in substance 
was passed by the lawmakers in North Carolina. Our 
old Kevised Statutes, chapter 118, section 1, provided that 
all and every person and persons whatsoever shall, on the 
Lord's day, commonly called Sunday, carefully apply 
themselves to the duties of religion and piety, and that 
no tradesman, artificer, planter, laborer or other person 
whatsoever, shall, upon the land or water, do or exercise 
any labor, business or work of their ordinary callings 
(works of necessity and charity only excepted) on the 
Lord's day aforesaid, or any part thereof, on pain that 
every person so offending, being of the age of fourteen or 
upwards, shall forfeit and pay the sum of one dollar. 

Is Sunday Contract Binding? 

In the year 1857, one Henry Easley, a horse-trader by 
profession, on a Sunday sold to James K. Melvin a horse, 
warranting the horse to be "sound and healthy." Melvin 
claimed that the horse was not sound and healthy, and 
sued Easley for deceit and false warranty. Among other 
defences put up by Easley was that the trade was void, 
having been made on Sunday. 



Sunda/y. 141 

Our Supreme Court then consisted of Pearson, Battle 
and Manly ; and the question was so vexed, that three 
opinions were filed. Judge Battle's being a dissenting 
opinion. 

Judge Pearson attempted to apply the reductio ad 
ahsurd'Um by saying that " if the defendant's contention 
be true, then horse-traders may cheat with impunity, pro- 
vided always it may be done on the Lord's day." The 
opinion of the Court was largely formed by the fact that 
the trade was a private one and in a private place. 

Ours is a Christian country, but Christianity is not 
established by law, and the genius of our free institutions 
requires that church and State shall ever be kept separate. 

Construction of Oid Law. 

" When the act compels people to observe the Lord's 
day and apply themselves to' the duties of religion and 
piety on that day, and thereby prohibits labor which is 
done in private and which does not offend public decency 
or disturb the religious devotion oO)thers, the power of 
the Legislature is exceeded by force of the declaration of 
rights, 'All men have a natural and inalienable right to 
worship Almighty God according to the dictates of their 
own consciences." So spoke the Court, and Melvin recov- 
ered his damages. Pearson further illustrated the point 
in this wise : " So the case of a lawyer who sits in his 
room and makes a law-book or writes a deed, or a mer- 
chant who, in his counting-room posts his books, or an 
old lady who sits by her fireside and knits, if done on 
Sunday, comes within the words of the statute. But my 



142 TalU About Law— No. 27. 

opinion is that the statute is void and inoperative in 
respect to oases of this kind, and that its operation is 
confined to manual, visible or noisy labor, such as is cal- 
culated to disturb other people ; for example, keeping an 
open shop or working a blacksmith's anvil," etc. 

The law was conceded to be otherwise in England 
where the church and the State are one. 

The New Statute. 

In consequence of this decision, no doubt, this law was 
changed and now reads this way : " On the Lord's day, 
commonly called Sunday, no tradesman, etc., shall do or 
exercise any labor, business or work of his ordinary call- 
ing — works of necessity and charity alone excepted — nor 
employ himself in hunting, fishing or fowling, nor use 
any game, sport or play upon pain of paying one dollar." 
And the next section of the Code makes it a misdemeanor 
to hunt on Sunday. 

In 1843 one Williams, in Martin County, was indicted 
for making his hands work in the field on Sunday. But 
our Court says that a profanation of the Sabbath by per- 
forming labor on that day is not an indictable offense in 
this State. They congratulate the State that cases of the 
kind so seldom arise in Xorth Carolina. Williams, no 
doubt, could have been made to pay the penalty of one 
dollar, but it was sought to punish him severely for a 
supposed violation of the common law. 

Can Arrest on Sunday. 

One may be arrested in our State for crime on Sunday ; 
but no civil process can be served on Sunday, nor can one 
be arrested in a civil action on Sunday. 



Sunday. 143 

Railroads Running on Sunday. 

It is thought that railroads ought not to be allowed to 
run on Sunday. The difficulty in stopping them is that 
the State might interfere with the United States in the 
matter of carrying the mails, if the mail train were not 
permitted to run on Sunday. 

A freight car cannot be loaded or unloaded on Sunday. 
^ov can it travel on Sunday unless- it began its journey 
on Saturday, when it may go until nine o'clock Sunday 
morning in order to reach its journey's end. But Sunday, 
by our act, embraces only that portion of the day from 
sunrise to sunset. 

Such Sundays as are experienced on the continent of 
Europe must be greatly demoralizing. 

Public laws, however, cannot make people keep holy 
the Sabbath day. 

Kespect for the Sabbath must begin with the child and 
must be taught him by the precept and example of its 
parents. 

Indeed, the home ought to be the nursery of the virtues. 
It ought to be made attractive enough to keep the old and 
young away from questionable places of pleasure or amuse- 
ment on Monday as well as Sunday. 

A Suggestion. 

For the benefit of judges, lawyers, suitors and wit- 
nesses, our Superior Courts ought to open on Tuesday. 

Our Supreme Court does not sit Monda3^s. In our 
sister State, Yirginia, court convenes on Tuesday. 

The next Legislature ought to make the change. 



144 Talks Ahout Law — No. 



Number Twenty-Eight. 



INN-KEEPER AND GUEST. 

What is an Inn ? 

An inn or hotel is declared to be a house, the owner of 
which holds out that he will receive all travellers and 
sojourners who are willing to pay a price adequate to the 
sort of accommodation provided, and who come in a state 
in which they are fit to be received. 

Every line of l}iis definition is important. Of course it 
is (1) a house ; and in addition, the owner of which (2) 
holds out (3) that he will receive (4) all travellers and 
sojourners who are (5) willing to pay a price (6) adequate 
to the accommodation provided ; always, however, pro- 
vided (7) those who come are in a condition to be received. 

Difference Between Inn and Boarding-House. 

The main diflFerence between the inn or hotel and the 
boarding-house is that the boarding-house keeper can 
select his own guests, as his desires may dictate; while 
the hotel-keeper is compelled to entertain any and every- 
body who is fit to be received and is able to pay. 

Who May Hotel- Keeper Reject? 

If one is not decent in his dress, or in his conduct, or 
has a contagious disease, or is drunk or so disorderly as 
to disturb the hotel, or if the hotel be full, the proprietor 
may decline to entertain him ; so, if he have not the 
money to pay his bill. 



Inn-Keeper and Quest. 145 

And it seems that the money may be demanded in 
advance, if the hotel man doubt the ability of the Mrould- 
be guest. 

Who l8 a Guest? 

One who is absent from home, whether on pleasure or 
business, is a guest. Persons simply attending a ball at 
a hotel are not guests. Nor will leaving baggage or other 
dead thing at a hotel constitute one a guest. But leav- 
ing live-stock at a hotel will create the relation. 

If, when the person first arrive, he make a special agree- 
ment as to his board, how long he is to remain and at 
what price, many Courts hold that he loses his transient 
character and ceases to be a guest. The length of time 
one stays does not aflfect the matter ; taking one meal is 
sufficient. 

Rights of a Guest ? 

These rights are many and valuable. In the first place, 
he is entitled to wholesome food and good lodging. If 
the hotel furnish unwholesome food, or a bed with damp 
sheets, or a room in which one with a contagious disease 
has lately been, the landlord knowing this fact, and the 
inmate is made sick thereby, an action lies. 

So the guest's property must be protected. " Inn-keep- 
ers, as well as common carriers, are regarded as insurers 
of the property committed to their care." 

Statute Law on the Subject. 

Many of the States have laws providing that if a notice 
is conspicuously posted in each guest's room on which is 
printed that the hotel is not liable for any loss unless the 
10 



146 Talks About Law— No. ^8. 

guest's valuables be deposited in the hotel safe, the inn- 
keeper is relieved of liability for loss, except for necessa- 
ries, such as wearing apparel, a watch and chain, neces- 
sary pocket change, and the like. As to these things, it 
cannot be required that the guest shall, every night, send 
his clothes and watch and money to the hotel safe. 

North Carolina has no Statute. 

Our State has no statutory hotel law. The result is 
that, really, there is no limit to the liability of the inn- 
keeper for the lost baggage of his guest. 

Liability of Inn-Keeper. 

In this State, no doubt, it would be held that a land- 
lord cannot limit his liability by a posted notice, unless 
the same is brought to the actual notice of the guest, or 
unless the guest assent thereto. So that an inn-keeper, 
in this State, is liable for the loss of a guest's baggage, 
unless the loss occur because of the carelessness of the 
guest. This liability for the loss of baggage continues 
until the guest pays his bill and leaves the hotel, and until 
the hotel has delivered the baggage at the depot, if it 
undertakes to do so. But a guest cannot hold an inn- 
keeper responsible for lost baggage after the guest has 
quit the hotel and gone awa}^, leaving his baggage in the 
keeping of the hotel. 

What is Baggage ? 

Whatever a traveler takes with him for his care and 
convenience, or even for his instruction and amusement, 
generally speaking, is luggage. Articles of jewelry, such 
as one usually wears, are baggage ; such as a watch or 



Inn-Keeper and Quest, 147 

finger-ring, or breast-pin, gold spectacles, or even a pistol 
or gun, brushes, razors, etc.; but silver spoons are not. 

Leaving Door Unlocked. 

It is safest to keep one's door locked on going to bed. 
But it is held that the inn-keeper is liable for stolen bag- 
gage even if the door is not locked. In one case where 
the guest flourished his money about and a stranger jerked 
his head in and out of the guest's room, and the door of 
the same was not locked, the Court held that the guest 
was entirely too careless, and that the hotel was not liable 
for money stolen. Nor is the hotel an insurer of goods 
in the public sample-room, or in other public places at 
the hotel. 
Pullman Sleeper Not an Inn. 

Is the car company responsible for baggage lost by a 
passenger? No. The passenger on a Pullman sleeper is* 
in no sense a guest and has none of a guest's privileges. 
For gross carelessness the car company would be liable. 

Horses and Vehicles. 

If the hotel man undertakes to care for a horse or 
vehicle, and the same be stolen through the carelessness 
of the hostler, an action lies. 

In one case where the vehicle was stolen from under a 
shed which w^as not locked up, the Court said that putting 
it in such a place was such carelessness that the hotel 
must pay. ^ 

Injury From Rats and Mice. 

. It would be too much to make the landlord liable for 
the injuries done to baggage by rats and mice, so says 
our Court. 



148 TalU About Law— No. 28. 

Can Inn-Keeper Eject Guest by Force? 

If necessary, he no doubt may. But in a Pennsylvania 
case where more force was used than necessary it cost the 
inn-keeper six hundred dollars. In this connection it may 
be mentioned that the hotel-keeper is responsible if his 
servant unlawfully set upon a guest. An inn-keeper has 
complete control over his rooms. He may assign j^ou to 
any room he chooses, you have no choice. And if he put 
you in a good room and, afterwards, wishes to give you 
another, he has the right to move you. 

Guest Failing to Pay Bill? 

In such case the inn-keeper has a lien on the guest's 
baggage. If guest leave and come back again the bag- 
gage cannot be held to pay the first bill, the lien is gone. 
So if one board by the month at a hotel, generally speak- 
ing, his baggage is not liable for his board. He ceases to 
be a transient person. 

Has Livery- Stable a Lien? 

No, it has not. But if one be both an inn-keeper and a 
livery-stable keeper, and a horse be left with him by a 
guest, a lien exists on the horse for its feed. One horse 
cannot be held to pay the feed of another. Nor can the 
horse be held to pay the guest's bill. 

What Then is a Lien? 

It is the right of an inn-keeper to hold a guest's bag- 
gage till his bill be paid, or t© hold his horse till its bill 
be paid. 

Neither horse nor baggage can be sold by the lienor. 
He must sue and get judgment on his claim, and then 
have the Sheriff to sell at public auction. 



Inn-Keeper and Guest, 149 

Has Boarding- House a Lien? 

Ko. The keeper of such a house is not compelled to 
receive any one, and if he does he has no lien for his 
board bill. He looks to the boarder alone, and if he dojes 
not like him he can refuse to board him. But not so 
with a hotel. The inn-keeper must take all who come 
along, as we have seen, and it is but fair that he shall be 
paid for what he cannot avoid. 

Measure of Responsibility of Boardlng-House for Baggage. 

Boarding-house keepers are not insurers of the baggage 
of guests, and are not liable for its loss unless guilty of 
gross negligence and carelessness respecting the same. 
For example, employing servants who are roguish and 
who steal the baggage, etc. 

North Carolina Inn-Keepers Need a " Hotel Statute." 

If our inn-keepers are wise they will petition the Legis- 
lature to pass a law such as other States have. New 
York State, for example, has a good hotel law. 

The New York law on this subject is, in effect, that the 
hotel-keeper shall not be liable for loss of money, jewels, 
ornaments or valuables when he shall have provided a 
safe for the custody of such property, and shall have 
posted a notice to that effect in the room occupied by the 
guest, and the guest shall have neglected to deposit such 
property in the safe. 

The writer is indebted to a little work called " Wrongs 
and Rights of Host and Guest," by R. Vashon Rogers, 
for much of the matter in this chapter. 



150 Talks About Lam— No. W. 



NUMBER TWENTY-NINE. 



USURY. 



Charging, receiving or collecting a greater rate of 
interest than the law allows is called usury. 

Eight Per Cent. 

If an agreement is made, in writing, eight per cent, 
may be collected. 

Six per Cent. 

If there be no agreement in writing, not more than six 
per cent, can be charged or collected. 

Effect of Usury. 

If one violate the above law he loses all the interest on 
the transaction and cannot collect any sum by way of 
interest. Ifot only so, but he is liable, at the suit of the 
party aggrieved, to pay back to him double interest. 

Our Court has said, however, that if the money-lender 
sue and get judgment on the usurious transaction, and in 
that suit the party aggrieved fail to plead usury, he can- 
not afterwards in a separate case sue for the same. He 
is estopped by the first suit. 

liiustrations. 

A merchant has an open account against a customer. 
On the bill-head is written "Eight per cent, charged on 
all accounts." 



Usury, 151 

He charges and the customer pays him eight dollars on 
a hundred-dollar-account for one year. This is usury, 
because the customer did not agree in writing to pay 
eight per cent. The customer could sue and recover not 
only the eight dollars interest but eight more dollars, i, ^., 
the double interest. 

Nor is there any dodge or subterfuge by which the law 
can be evaded. Getting ninety dollars and giving a note 
for one hundred is usury. Borrowing money by buying 
cotton is usury, if, by the deal, more than eight per cent, 
is obtained. 

A New Decision. 

Our Court has lately said that the above rule, that one 
who charges usurious interest shall collect no interest if 
usury be pleaded, applies to all cases, legal and equitable. 
Therefore, a mortgagor could apply to a Court of Equity 
for an injunction to restrain a sale on the ground of usury, 
and the relief might be granted, even without any require- 
ment that the legal interest be first tendered. 

He who would have equity must do equity would not 
aflfect the case. 



152 Talks About Law— No. 



NUMBER THIRTY. 



THERE BEINO NO WILL. 

We will hereafter have occasion to consider the sub- 
ject of wills, and incidentally, what will the law makes 
for a man dying without a will. 

Personal Property. 

The personal estate of a person dying intestate, that is 
without a will, is divided under the " statute of distribu- 
tions." 

Children and Widow. 

If a man die leaving more than two children and a 
widow, the personalty goes equally to widow and each 
child. That is, she gets a child's part. If there are two 
children or less, the widow gets one-third, and two-thirds 
goes to the child or children. If the dead man left no 
child, nor the legal representative of a deceased child, the 
widow gets half the personalty. In all cases the widow 
gets her year's allowance of three hundred dollars and 
one hundred dollars for each child or member of the 
family under fourteen years. 

Father. 

Now, if a son dies leaving no widow nor children, his 
father takes the personalty. But if a son dies leaving no 
widow nor children, and having no father, but a mother, 
the estate goes equally to her and the brothers and sisters 
of the son. 



Th^e Being No Will. 153 

By Stocks and by the Head. 

Sometimes a question arises as to whether persons take 
by stocks or by the head— j9^r stirpes ov per capita^ as the 
law hath it. This is very material, as one may readily see. 

Suppose an old bachelor dies leaving no mother nor 
father, but leaving one living brother, two nephews and 
two nieces, the children of a deceased brother, will the 
living brother get a fifth or a half of the estate ? He will 
get half, and the nephews and nieces will get each one- 
fourth of a half. That is to say, they take the place of 
the deceased brother of the intestate. 

If the old bachelor had died leaving no living brother 
or sister, but children of dead brothers, such children 
would have taken by the head. The presumption, so say 
our Court, is that they take in all cases by the head, and 
this presumption will prevail unless, as sometimes happens 
in wills, the opposite intention may be gathered. 

Advancements. 

A father will often, in his life-time, make a deed to a 
piece of property to one son, or will let that son have 
more money or other things of value than the other 
children. On the death of the father, the question arises, 
will that son have to account for what he received of the 
father before he can get any of the estate, or shall he 
keep what he has and share equally with the other children 
in the estate. In a word, did the father give him, or did 
he advance him money and other valuables ? If it was a 
gift, the son does not have to account for it ; if an advance- 
ment, he does. Of course, a father can give his son all 



154 Talks About Law— No. SO. 

the property to the exclusion of all the other children, if 
he wish. 

Presumption Against Gift. 

The presumption is against the gift and in favor of the 
advancement, and the son must show that it was a gift 
and was so intended. This he may do by evidence that 
the father said, " I give you this horse and do not wish it 
charged against you in the settlement of my estate ;" or 
by the words of the will, indicating that all the property, 
during the life of the testator, were gifts and not advance- 
ments ; or, indeed, in any way by which the presumption 
of an advancement is rebutted. 

Indeed, so far have our Courts gone that in a recent 
case from Durham they held that when a father executed 
to a son a deed to a tract of land worth say $1,200, and 
recited a consideration in the deed of only $400, the son 
was advanced to the extent of $800, which he must 
account for in a settlement of the estate. 

This did not violate the rule of law that you may not 
alter the terms of a deed or other written instrument 
concerning land by word of mouth ; because our Courts 
hold that the consideration of a deed is not embraced in 
the Statute of Frauds which requires all contracts for the 
sale of lands, or any interest in or concerning the same, to 
be in writing. 

Hotch-Pot. 

Suppose a son has been advanced by the father, can the 
other children take away what he has thus received? Not 
at all. But if the party advanced is not willing to, and 



There Bevng No Will. 155 

does not, render an inventory showing what he has 
received from the father, he can get none of the estate. 
If he is willing to render such inventory and account for 
what he received, which is called bringing the effects into 
" Hotch-Pot," he will then share equally with all the other 
distributees. 

Executor and Administrator Represent Estate. 

• An administrator, as is well known, is appointed by the 
Clerk, and represents the estate of an intestate. An 
executor is appointed by will. 

So true is it, in the eye of the law, that the executor or 
administrator represents the estate of the deceased, that 
when suit is brought upon any contract of the deceased, 
generally no one is made defendant in the action but such 
executor or administrator. The parties really interested 
as distributees of the estate, or as legatees, are not only not 
necessary parties, but are oftentimes not proper parties to 
the action ; and after judgment goes against the executor, 
and afterwards he files his petition to make real estate 
assets to pay the debts of the deceased, in which last pro- 
ceeding the heirs at law are necessary parties, they are 
not permitted to attack the judgment for any cause what- 
ever save and excepting fraud or misconduct on the part 
of th^ administrator. They cannot set up the Statute of 
Limitations or payment previous to the taking of the judg- 
ment, etc., because the executor has had his day in court 
and the same case cannot be twice tried except upon 
appeal. Matters arising since the judgment they may 
avail themselves of. The solvency or insolvency of many 
an estate is a matter largely depending upon the executor 
or administrator. 



156 Talks About Lww—No. 30. 

Husband no Interest in Wife's Lands Till Her Death. 

Previous to 1868, after a man had children by his wife, 
he had a beneficial interest in the rents and profits of her 
lands, even before she died. He is said to be tenant by 
the curtesy initiate. 

Since 1868, however, that is, under our new constitu- 
tion, the husband has practically no interest in his wife's 
lands, or the rents and profits of the same, until after her 
death. He then becomes tenant by the curtesy consum- 
mate. 

Wife Sues to Recover Rent. 

Our Courts have recently said that the husband cannot 
sue alone and recover the rents of the wife's land, she 
living. She must sue. 

What a change this is in the old law, when husband 
and wife were one in law. Baron and femme they were 
called. We are told that once upon a time in England, a 
wife, deserted by her husband who fled the realm, sued 
alone in the Courts. Whereat, my Lord Coke was so 
surprised, that nothing w^ould give expression to his feel- 
ings but a Latin distich : 

"Eccel modo-mirum, quod foemina fert breve regis, 
Non nominando virum, conjunctum robore legis" 1 1 



How to Write Your Will. 157 



NUMBER THIRTY-ONE. 



HOW TO WRITE YOUR WILL. 

A person under twenty-one years of age is not capable 
of making a will. One more than twenty-one years of 
age, being of sound mind, may make a will ; and this 
applies to married women. But no man can, by his will, 
out his wife out of her dower ; nor can any woman, by 
her will, deprive the husband of his right of curtesy. 

We are told that three things in this life are certain — 
death, dower and taxes. 

The husband's right of curtesy, which is his right to 
use and occupy, during life, all the lands that his wife 
owned, is not so certain, because a husband having no 
children has not this right. 

Two Witnesses Necessary. 

A deed conveying land is good without a witness ; but 
a will is not good unless it has two witnesses, who signed 
the same in the life-time of the testator, at his request 
and in his presence. 

Holograph Will. 

There is but one exception to this rule. If a man 
write his will himself, and write his name in the body of 
the will or at its end, and the same is found among his 
valuable papers and effects after his death, or if it shall 



158 Talks About Law— No. 31. 

have been lodged in the hands of any person for safe- 
keeping, it is a good will. It is then called a holograph 
will, and will pass personalty and realty. 

Donatio Causa Mortis. 

It will not tend to confuse matters if we state that 
there are two kinds of wills which need not be in writing 
at all, and which are effectual to pass personalty only. 

One is called a donatio causa mortis, A father, for 
example, dying, hands his gold watch to his son, and says, 
"This is to be yours." The watch is the son's. 

Nuncupative Wills. 

The other kind of will the law calls nuncupative. By 
this will one may dispose of all his' "belongings" except 
land. It comes about in this wise : A man is in his last 
sickness, and at his own home (unless he is on a journey, 
etc.,) he calls up two witnesses specially to bear testimony 
as to his will, and to them he confides the disposition of 
his property, and dies. This must, generally speaking, be 
put in writing in six months after the death of the party. 

Marriage Revolces Will. 

Suppose that one makes a will and afterwards marries, 
what effect has the marriage on the will? Why it abso- 
lutely revokes it ; and the man dies without a will. 

After-born Child. 

Suppose that a child is born to a couple after the 
father's will is made, what effect has this event on the 
will ? It does not revoke it, but it lets in the child just as 
if the father had left no will. 



How to Write Tour Will. 159 

Witness a Legatee. 

Suppose that one of the witnesses to the will is named 
as a legatee therein, does this vitiate the will ? No. But 
the witness loses his legacy. 

Lapsed Legacy. 

Suppose that a father makes his will, and leaves his 
son John a farm and certain other things, suppose that 
John dies first, does the legacy to John lapse? This 
depends : if John has children it does not lapse, but goes 
to his children. But if John had had no issue it would 
have lapsed and gone back to the father's estate. 

Tying up Property. 

How long may a man tie up his estate by will ? A very 
rich man, named Peter Thellusson. in England, once tried 
the law in this respect. He appointed trustees to man- 
age his estate, and directed that it be turned over and 
over, and finally given to a particular person then unborn. 
His heirs appealed to the law and broke the will. And 
the rule since then is this : A life or lives in being, and 
twenty-one years thereafter, is the limit of perpetuity. 
That is to say, you may tie up property until the young- 
est person living, naming him, shall have died and until 
twenty-one years thereafter. 

Short Wills. 

A long will is a dangerous thing, unless drawn by a 
lawyer. 

Roscoe Conkling's will was a model of brevity : *'I give 
my entire estate, real and personal, to my wife to do with 
it as she pleases." 



160 Talks About Za/w—No. 3L 

The great Tilden's will was successfully attacked ; so 
was A. T. Stewart's and James K. Polk's. 

A clause in the will of our profound North Carolina 
lawyer, B. F. Moore, however, withstood the legal probe. 
On the contrary, a will, drawn with great care and dis- 
posing of large interests, prepared by our profoundest 
Chief Justice, was lately declared by our Courts to mean 
what the draughtsman did not intend to say. 

The Law's Will. 

We often hear the expression, "The law makes the 
best will." What does this mean ? 

Firsts as to the land : It means that the wife gets her 
dower therein, which is one-third part in value of all the 
land at any time owned by the husband ; or, that the hus- 
band gets his curtesy, which has already been explained, 
and that all the other lands are equally divided among 
the children. We will not discuss the law of descents, 
when there are no children. 

Second^ as to the personal estate : If there are more 
than two children the widow shall have a child's part; if 
not more than two, then the widow gets one-third. If no 
children or issue of dead children, the widow gets half. 

On the death of the wife, the husband gets all of her 
personal estate. This is the law's will. 

Void Gift to Davidson Coliege. 

Let us conclude with a case that happened in North 
Carolina in the fifties. All will agree, too, that it was a 
pity that it occurred as it did. 



How to Write Ymir Will. 161 

Maxwell Chambers gave, by will, $200,000 to Davidson 
College, a handsome bequest. But at that time the 
Trustees of the College, by its charter, could not, at one 
time, own real and personal property exceeding $200,000. 
The College owned valuable property before the Maxwell 
Chambers bequest ; and so the College lost nearly all of 
it. Nor did an act of the Legislature, passed soon after, 
extending the amount that the College might own, help 
matters. So Mr. Chambers' heirs got the property. 



11 



162 Talks About Lmo—N'o. 



NUMBER THIRTY-TWO. 

JUSTICES OF THE PEACE. 

Forms to be used by. 

The following are some of the most common forms to 
be used by Justices of the Peace : 

[No. 1.] 

COMMON FORM. 
A B ) 

againat y Justice's Court. 

C D ) 

State of North Carolina, to any constable or other lawful oflficer of 

county— Greeting: 

We command you to summon C D to appear before G. W. H., 

Esq., one of the justices of the peace for the county of , 

on the day of ... . , 18 . . , at his office (or elsewhere, as the 

justice may appoint the place of trial', in said county, to answer 
A. B. in a civil action for the recoveiy of . .dollars; and have you 
then and there this precept with the date anri manner of its service. 

Hereof fail not. Witness our said justice, this . . day of , 18 . . 

G. W. H 

Justice of the Peace. 
[No. 3.] 

AFFIDAVIT TO OBTAIN ATTACHMENT. 

General Form, 

A B ) 

against [ County of 

C D .... ) 

A. B., plaintiff above-named, being duly sworn, deposes and says: 

1. That the defendant C. D. is indebted to the plaintiff in the sum 

of dollars (state any cause of action founded on contract, 

specifying the amount of the claim, and the grounds thereof) 

2. That the said defendant (state any fact or facts, so as to bring the 
case within one of the classes in which an attachment may issue. 
The facts must be stated positively and affirmatively, not merely upon 
information and belief, except where a fact is alleged with a partic- 
ular intent. The intent in such case may be stated as on information 
and belief. See No. 4 ) A. B . 

Sworn to and subscribed before me, this . . day of 18.. 

G W. H ... 

Justice of the Peace, 



Justices of the Peace, 163 

[No. 4.] 

ANOTHER FORM OF AFFIDAVIT. 

(Title, &c., as in No. 3.) 
A. B.. plaintiff above named being duly sworn, deposes and says: 

1. ihat the defendant C. D is indebted to plaintiff in the sum of 

dollars, for goods sold and delivered to said defendant by the 

plaintiff on or about the day of , 18 . . 

2. That the said defendant has departed from this State, or keeps 
himself concealed therein with intent, as defendant is informed and 
believes, to avoid the service of a summons (or with intent. &c.. to 
defraud defendant's creditors) . A. B 

(Sworn to, &c., as in No 2.) 

(No. 5.) 

AFFIDAVIT AGAINST A FOREIGN CORPORATION. 

A B ) 

ngauist J- County of 

The Highland Mining Company. ) 

A. B. , the plaintiff above named, being duly sworn . deposes and says: 

1. That the defendant above named is indebted to th^» plaintiff in 
the sum of dollars, for the use and occupation of certain 

premises, by permission of plaintiff, from the day of , 

18... until the dav of ..,18.. 

2. That the defendant is a foreign corporation, created under the 
laws of the State of 

3. That the cause of action abo ^ e stated arose in this State. 

A. B 

(Sworn to, &c., as in No. 3.) 

(No. 6.) 

UNDERTAKING UPON ATTACHMENT. 

(Title as in No. 3 or 5.) 

Whereas, the plaintiff Above named is about to apply for a warrant 
of attachment against the property of the above named defendant: 

Now. therefore, we, J. W. B.. of .county, and W. D. M., 

of . - county, undertake in the sum of ... dollars (the sum 

must be at least two hundred dollar), that if the said warrant be 
granted and the defendant recover judgment in this action, or the 
attachment be set aside by order of the court, the plaintiff shall pay 
all costs that may be awarded to defendant in the same, and all dam- 
ages which he may sustain *bv reason of such attachment. 

J. VV. B 

VV. D. M 

Signed and delivered in the presence of G. W. H., Esq., this 

day of , 18.. 

G. W. H . 

Justice of the Peace. 



164 Talks About Law — No. 



[No. 7.] 

WARRANT OF ATTACHMENT. 



B 



] 



against > Justice's Court. 

C D ) 

State of North Carolina, to any constable or other lawful officer of 
.. county—GREETiNO: 

It appearing by affidavit to the undersigned that a cause of action 
exists in favor of the plaintiff against the defendant for the sum of 

dollars, and that the defendant is not a resid nt of this 8tate 

(or otherwise, as the fact may be), and the plaintiff having given the 
undertaking as required by law : 

Now, therefore, you are commanded forthwith to attach and safely 
keep all the property of the said defendant (J. D. in your county, or 
so much thereof as may be sufficient to satisfy the siid plaintiff *s 
demand, with costs and expenses; and have you this warrant before 
G. W H.. one of the justices of the peace for your county, at his 

office in said county, on the . . . day of 18. _ , with your 

proceedings hereon. 

Witnes-4 our said justice this day of , 18 . . 

G. W. H , 

Justice of the Peace, 
[No. 8.] 

officer's return to be indorsed on ATTACHMENT. 

T, O. P. M., constable (or sheriff) of . ..county, do hereby 

return that, by virtue of the within attachment, I have seized and 
taken into my possession the tangible personal property (or, have 
levied on the real estate, as the case may be) of the defendant within 
named, specified in the inventory hereto annexed. 

Dated this day of , 18.. 

O. P. M 

[No. 9.1 

INVENTORY OP PROPERTY ATTACHED TO ABOVE RETURN. 
A B ...;.. ) 

against J- County of 

C D ) 

I do hereby certify that the following is a true and just inventory of 
all the property seized or levied on by me under a warrant of attach- 
ment, issued in the above entitled action by G. W. H., Esq., with a 
statement of the books, vouchers, papers, rights and credits taken into 
my custody by virtue of said warrant (Insert list of property by items. ) 

I do further testify that the following property mentioned in the 
above inventory \b perishable, and that the expense of keeping the 
same until the termination of the suit would exceed one-fifth of its 
value; and do hereby apply to this court for authority to sell the 
same. (Insert a list of perishable property.) O. M. P , 

Dated this .... day of , 18. . Constable {or Sheriff), 



Justices of the Peace, 165 

' [No. 10.] 

ORDER DIRECTING SALE OP PERISHABLE PROPERTY. 
A... B ) 

against > Justice's Court. 

C D .... ) 

County of 

It appearing by the inventory returned by O. P. M. . constable (or 
sheriff), under the warrant of attachment granted in this action, that 
the following property mentioned in said inventory is perishable, to 
wit: (Insert here the list of perishable property.) 

It is therefore ordered that the said property be sold by the said 
officer at public auction, at such time and place as he shall deem 
advisable, and that the sad otHcer give notice of such sale as the sale 
of personal property on execution. 

It is further ordered that the proceeds of such sale be retained by 
said officer, and disposed of in the same manner as the property itself 
if the same had not been sold. 

Dated this day of , 18 . . 

G. W. H , 

Justice of the Peace. 

[No. 11.] 

NOTICE OF LEVY ON PROPERTY NOT CAPABLE OP MANUAL DELIVERY. 

ToH. B . : 

Take notice that by warrant of att ichment issued in this action, a 
certified copy of which is herewith served upon you, I have levied 
upon, and do hereby levy upon, your indebtedness, amounting to 

dollars, or thereabouts, to the defendant above named. 

(Describe as particularly as possible the shares, debts or property 
levied upon.) 

Dated this day of , 18 . . 

O.P.M , 

Constable (or Sheriff). 

The officer will indorse on the copy of the attachment, 
served with the above notice, the following C(3rtificate : 

I do hereby certify that the within is a true copy of the warrant of 
attachment in my possession, issued in this action, and of the whole 
thereof. 

Dated this day of , 18.. 

O. P. M 

Constable (or Sheriff). 



166 TalTca About Law— No. 32. 



[No. 12.] 

ORDER DIRECTING THIRD PERSON (H. B.) TO APPEAR AND BE EXAMI9SD. 
A B ) 

iigainst > Justice's Court. 
C D ) Countyof 

It appearing to me by the certificate of O. P. M., constable (or 
sheriff) of said county, that the said oflBcer, with a warrant of attach- 
ment against the {woperty of C. D , the defendant in this action, has 
applied to H. B. for the purpose of lev^ying upon a debt owing to the 
defendant by said H. B (or upon property of said defendant held by 
said H. B., or otherwise), and that the said H. B refuses to furnirfi 
said officer with a certificate designatinsi the amount of the debt 
owing by said H. B. to the defendant or the amount and description 
of the property held by said H. B. for the benefit of the defendant. 

Now, therefore, I do order and require the said H. B. to attend 

before me at my office, on the . . day of , 18 . , and be 

examined on oath concerning the same. 

Dated this ...day of ...., 18.. G. W. H , 

Justice of the Peace. 
[No. 13.] 

ATTACHMENT TO ENFORCE OBEDIENCE TO ABOVE ORDER. 
A. B ) 

against [ Justice's Court. 

C D ) 

State of North Carolina, to any constable or other lawful officer of 
county— Greet£NG: 

Whereas, it appears that H B. was duly served on the day of 

,18.-, with an order issued by G. VV H.. Esq., one of our 

iu tices of the peace for said county, requiring said H. B. to attend 
before said justice at his office, in said county, on the day of 

,18 , and be examined on oath concerning a certain debt 

owing to the defendant, named in the above action, by the said H. B. 
(or property held by the said H. B. for the benefit of the defendant, 
or otherwise, as the case may be). 

And whereas, the said H. B., in contempt of said order, has refused 
or neglected, and doth still refuse or neglect, to appear and be exam- 
ined on oath, as in said order he is required to do: 

Now, therefore, we command you that you forthwith attach the 
saidi H. B , so as to have his body before G. VV. H , Esq., one of our 

justices of the peace for your county, on the day of , 18 . . , 

at his office in said county, then and there to answer touching the 
contempt which he, as is alleged, hath committed against our author- 
ity; and further, to perform and abide by such order as our said 
justice shall make in his behalf. And have you then and there this 
writ, with a return under your hand, of your proceedings thereon. 

Hereof fail not at your peril. 

Witness, our said justice, this day of , 18 . . 

G. W. H , Justice of the Peace. 



Jvsticea of the Peace. '16Y 

[No. 14.] 

UNDERTAKING ON DISOHARQE OP ATTACHMENT. 

(Title of the Cause as in No. 3.) 
Whereas, the property of the above-named C. D. has been at- 
tached, and the defendant desires a discharge of said attachment on 
giving security according to law: 

Now. therefore, we, B. B. , of county, and D. D. , of 

county, undertake in the sum of dollars (the sum named must be 

at least double the amount claimed by plaintiff), that if the said 
attachment be discharged, we will pay to the plaintiff, on demand, 
the amount of the judgment that may be recovered against the 
-defendant in this action. 

Dated this.... day of ,18.. 

(Signed) B. B 

D.D 

ACKNOWLEDGMENT AND AFFIDAVIT OF SURETIES. 

County of 

On this day of , 18. . , before me pei-sonally appeared 

the above-named B. B. and D. D., known to me to be the persons 
described in, and who executed the above undertaking, and severally 
acknowledged that they executed the same 

And the said B. B. and D. D., being severally sworn, each for him- 
self, says that he is a resident of the State of North Carolina, and a 

householder (or freeholder) therein. B. B 

D. D 

Sworn to and subscribed the da\ above written before me. 

G. W. H , 

Juittice of the Peace^ 
[No. 15.] 

ORDER VACATING ATTACHMENT ON SECURITY BEING GIVEN^ 

Jl B ) 

against [ Justice's Court. 
C D ) Countyof 

The defendant having appeared in this action, and applied to dis- 
charge the attachment on giving security; and the said defendant 
having delivered to the court an undertaking in due form of law, 
which has been duly approved by the court: 

It is ordered that the attachment issued in this action on the 

day of -.,18 , be and the same is hereby vacated and dis- 

charged, and the defendant is released therefrom in all respects. It 
is further ordered, that any and all proceeds of sales, and money 
collected by O. P. M., constable (or sheriff), and all property attached, 
now in said officer's possession, be paid and delivered to the said 
defendant or his Hgent. 

Datedthis ...day of ,18.. G. W. H , 

Justice of the Peace, 



168 Talks About Law— No. 



[No. 16.] 

FORM OF PUBLICATION TO BE MADE BY PLAINTIFF IN ATTACHMENT, 
A.... B ....) 

against \ Attachment. 

C .. D ) 

Seventy-five dollars due by note (or otherwise, as the fact may be). 
Warrant of attachment returnable before G. W. H.. Esq., a justice 

of the peace for county, at his oflfice (or other wis*, as the 

case may be), on the day of ,18 , when and where the 

defendant is required to appear and answer the complaint. 

Dated this . day of 18 . . 

A, B Plaintiff. 



[No. 17.] 

AFFIDAVIT FOB ARREST ON DEBT FRAUDULENTLY CONTRACTED. 
A B ) 

against \ County of . 

C D ) 

A. B., plaintiff above named, being duly sworn, deposes and says: 

1 . That the defendant C. D is indebted to the plaintiff in the sum 
of dollars on an inland bill of exchange, drawn on the day of 

,18 , by the defendant on the First National Bank of 

.Charlotte, North Carolina payable at sight to the order of plaintiff; 

2. That on the day of 18 . . , the defendant applied to 

the plaintiff to purchase a bill of goods amounting to dollars, 

which the plaintiff offered to sell to the defendant for cash; that the 
defendant, contriving to defraud the plaintiff, represented that he 
had money on deposit at said National Bank for more than the 
amount of the proposed purchase, and offered to give plaintiff a sight 
draft on said bank; that the plaintiff, relying upon the representa- 
tions of the said defendant, and solely induced thereby, sold and deliv- 
ered a bill of goods amounting to dollars to the defendant, 

who thereupon drew the sight order on said bank above referred to; 

that on the day of. , 18 , the plaintiff presented said 

draft at said bank for acceptance, when the same was not accepted 
for want of any funds in said bank to the credit of the defendant; 
that notice of non-acceptance was given to the defendant, who has 
wholly refused to pay the draft or any part thereof; that the repre- 
sentations made as aforesaid by the defendant were, and each and 
every of them was, as deponent is informed and believes, untrue; and 
that the defendant, as deponent is informed and believes, did not 
have, nor expect to have, any funds on deposit at such bank, at the 
making of the representations above mentioned, but said defendant 
was then and is now wholly insolvent. 

A. B 

Sworn to and subscribed before me, this day of , 18 

G.W.H , 

Justice of the Peace, 



Justices of the Peace, 169 



B ) 

-D ) 



[No. 18.] 

UNDEBTAKINa ON ARBBST. 



A B. 

agavMt \ County of . 

C 

Whereas, the plaintiff above named is about to apply (or, has 
applied) for an order to arrest the defendant C. D. : 

Now, therefore, we, J. J. , of county, and P. P. , of 

county, undertake in the sum of dollars (the sum must be 

at least one hundred dollars), that if the said defendant recover judg- 
ment in this action, the plaintiff will pay all costs that may be 
awarded to the said defendant, and all damages which he may sus- 
tain by reason of his arrest in this action. 

J. J 

P. P 

Signed in my presence, this day of 18.. 

G. W. H..- , 

Ju9i\c^ of the Peace. 
[No. 19.] 

ORDER OF ARREST. 
A... B ) 

against v Justice's Court 

C D ) 

North Carolina, 

County of 

To any constable or other lawful officer of said county : 
For the cause stated in the annexed affidavit: 
You are required forthwith to arrest C. D., the defendant named 

above, and hold him to bail in the sum of dollars (the sum 

should be the amount of the plaintiff's claim), and to return this 

order before the undersigned at his office in said county, on the 

day of , 18..; of which return you will serve a notice on 

plaintiff or his attorney. 

Dated this. ...day of ,18.. 

G. W. H , 

Justice of the Peace, 
[No. 20.] 

UNDERTAKING OF BAIL ON ARREST. 

A B ) 

against [-County of 

C D ) 

Whereas, the above-named defendant, C. D., has been arrested in 
this action: 

Now^ therefore, we, B, B., of county (tailor), and D. D., 

of .county (merchant), undertake, in the sum of 

dollars (the sum should be the same as mentioned in the order of 
arrest), that, if the defendant is discharged from arrest, he shall, at 



170 Tatka Ahout Loajo—No. 



all times render himaelf amenable to the process of the oourt during^ 
the pendency of this action, and to such as may be issued to enforce 
judgment therein. 

B. B 

D. D 

Signed in my presence, this day of , 18.. 

G.W.H , 

Justice of the Peace. 

[No. 21.] 

NOTICE OP EXCEPTION TO BAIL. 



\ 



A B... 

against 
C......-.D... 

To O. P. M., constable (or sheriff) of the county of : 

Take notice that the plaintiff does not accei^t the bail offered by the 
defendant in this action (and if the undertaking is defective in form 
or otherwise, add also), and further he excepts to the form and suffi- 
ciency of the undertaking. 

Yours, &c., A. B , Plaintiff. 

(or M. W. N , Attorney for Plaintiff,) 

Dated this day of , 18.. 

TNo. 22.] 

NOTICE OP JUSTIPICATION OP BAIL. 

A B ) 

against }• County of 

Cii D ) 

To A. B., plaintiff (or M. W. N., attorney for plaintiff): 

Take notice, that the bail in this action will justify before G. W. H. ,. 
Esq., a justice of the peace for said county, at the office of said jus- 
tice, in said county, on the day of , 18.. 

C. D , 

(or attorney for C. D.), Defendant, 
Dated this day of , 18. . 

[No. 23.] 

NOTICE OP OTHER BAIL. 

(Title, &c., as in last form.) 

Take notice, that R. S., of county (physician), and N. Y.^ 

of county (farmer), are proposed as bail, in additioato (or, 

in place of) B. B. and D. D., the bail already put in; and that they 
will justify (conclude as in last form). Date, &c. 



Justices of the Peace. 171 

[No. 24.] 

JT7BTIPICATION OP BAIL. 
A B ) 

against > Justice's Court. 

C D ) 

County of 

On this. ...day of , 18.., before G. W. H., Esq., a justice 

of the peace for said county, personally appeared B. B. and D. D. (or 

B. S. and N. Y., as the case may be), the bail given by the defendant 

C. D., in this action, for the purpose of justifying pursuant to notice; 
and the said B. B., being duly sworn, says: 

1. That he is a resident and householder (or freeholder) in this 
State; 

2. That he is worth the sum o^ dollars (the amount specified 

in the order of arrest), exclusive of property exempt from execution. 

And the said D. D., being duly sworn, says: 

(as with the other bail.) 

(And so on, with each bail offered.) 

[Signatures of bail.] 

Examination taken and sworn to before me, this day of , 

18... 

G. W.H , 

Justice of the Peace, 
[No. 25.] 

ALLOWANCE OP BAIL. 
A B ) 

against )■ Justice's Court. 

C D ) 

County of 

The bail of the defendant, C. D., within mentioned, having ap- 
peared before me and justified, I do find the said bail sufficient, and 
allow the same. 

Dated this... day of , 18.. 

G.W.H , 

Justice of the Peace. 
[No. 26.] 

SUBPCENA TO TESTIPY. 

STATE OF NORTH CAROLINA, ) 

County. ) 

To S. T Greetinq: (The Justice may insert any number of 

necessary names. > 

You (and each of you) are commanded to appear personally before 
G. W. H., Esq., a justice of the peace for said dounty, at his office 

in said county, on the day of. , 18.., to give evidence in 

a certain civil action, now pending before said justice, and then and 



172 Talks About Lcm—No. 



there to be tried, between A. B., plaintiff, and C. D., defendant, on 
the part of the defendant (or plaintiff).* Hereof fail not, under the 

penalty prescribed by law. Witness, our said justice, this day of 

...-: ,18- 

G. W. H , 

Justice of the Peace, 

[No. 27.] 

N. B. — The justice may, instead of a formal subpoena, 
indorse on the summons or other process an order for 
witnesses, substantially as follows : 

'*The officer to whom the within process is directed will summon 

the following persons as witnesses for the plaintiff ; and 

the following as witnesses for the defendant , and will 

notify all such witnesses t6 appear and testify at the time and place 
within named for the return of this process. 

Dated.- -.day of , 18.. 

G. W.H , 

Justice of the Peace, 

[No. 28.] 

SUBPOENA DUCES TECUM. 

If any witness has a paper or document, which a party 
desires as evidence at the trial, the justice will pursue 
the form number 26 as far down as the asterisk*, and 
then add the following clause : 

**And you, S. T., are also commanded to bring with you and there 
produce as evidence a certain bond (describe particularly) which is 
now in your possession or under your control, together with all 
papers, documents, writings or instruments in your custody, or under 
your control." (Conclude as in form number 36.) 

[No. 29.] 

FORM OP OATH TO WITNESS. 

Tou swear that the evidence you will give as to the matters in dif- 
ference between A. B., plaintiff, and C. D., defendant, shall be the 
truth, the whole truth, and nothing but the truth. So help you God. 



Justices of the Peace. 178 

[No. 30.] 

PBOCEBDINQS AGAINST DEFAULTING WITNESS. 

When a witness under subpoena fails to attend, the 
justice will note the fact in his docket by some such entry 
as the following : 

**R. P., a witned:) suoimoned on behalf of the plaintiff, called and 
failed.*' 

If the party who sufifers by default of the witness 
wishes to move for the penalty against him, he will serve 
substantially the following notice on the witness : 

A B ) 

against V County of 

C D ) 

ToRR: 

Take notice, that on the — day of — > IB • - > the plaintiff in 

the above action will move G. w . H , Elsq., the justice before whom 

the trial of said action was had, on the day of , 18.., 

for judgment against you for the sum of dollars, forfeited by 

reason of your failure to appear and g^ve evidence on said trial as 
you were summoned to do. 

Dated this.... day of , 18.. 

A. B , 

Plaintiff. 

The justice will enter the proceedings on the foregoing 

notice on his docket as follows : 

A B \ Justice's Court. 

against \ Motion for penalty against R. P. , defaulting witness. 
C D ) 

day of , 18--, A. B., above-named, appears, and, 

according to a notice filed and duly served on R. P., moved for the 

penalty of dollars, forfeited by the said R. P. by reason of his 

failure to attend and give evidence on the trial of a cause wherein 
A. B. was plaintiff and C. D. was defendant, tried before me at my 

office on the day of , 18... as appears by entry duly 

made on my docket; when and where the said R. P., a witness sum- 
moned on the part of the plaintiff in that action, was called and did 
fail. 

R. P. app^rs and assigns for excuse **high water,'' and offers his 
own affidavit, which is filed. He also offers as a witness in his 
behalf, S. S., who, being duly sworn, testifies that (state what S. S. 



174 Talks Ahotii^ Za/w — J!fo. 



says about the condition of the water at the time). R. P., having no 
other evidence, closed the case on his part. Whereupon A. B. offered 
M. Y. as a witness, who, being sworn, testifies (state what witness 
says). 

ISTeither party having any other evidence, and a'ter 

hearing all the proofs and allegations submitted for and 

against the motion — 

It is adjudged, on motion of A. B., that A. B. do recover of R. P. 

the sum of dollars, penalty forfeited by reason of the premises, 

and the further sum of dollars, costs of this motion. 

[No. 31.] 

FOKM OP A VENIRE. 

The justice will make a list of the persDjis drawn by 
him as jurors, and indorse thereon substantially as fol- 
lows : 

To O. P. M. , constable of county: 

You are hereby directed to summon the persons named within to 

appear as jurors before me at my office, in your county, on the 

day of -for trial of a civil action now pending between A. B., 

plaintiff, and C. D., defendant, then and there to be tried. And have 
you then and there the names of the jurors you shall summon, with 
this precept. 

Dated this ..day of , 18 . 

a. W. H ..., 

Jvslice of the Peace, 
[No. 83.] 

FORM OP JUROR'S OATH. 

You swear well* and truly to try the matter in difference between 
A. B., plaintiff, and C. D., defendant, and a true verdict to give 
thereon according to the evidence in the cause. So help you God. 

[No. 33,] 

FORM OF OATH TO CONSTABLE IN CHARGE OF JURY. 

You swear that you wiU, to the utmost of your ability, keep the 
persons sworn as jurors on this trial together, in some private and 
convenient place, without any meat or drink, except such as may be 
ordered by the court; that you will not suffer any communication, 
orally or otherwise, to be made to them; and that you will not ck>m- 
municate with them yourself, orally or otherwise, unless by order of 
the court. So help you God. 



JusUcea of the Peace^ 175 

[No. 84.] 

SUMMONS AQAINST DBFAULTINQ JUBOB TO SHOW CAUSE. 

State of North Carolina, to any constable or other lawful officer of 

county — Geeetinq: 

We command you to summon R. S. to appear before G. W. H, , 
Esq.. a justice of the peace for your county, at his office in siid 

county, on day of , 18.., to show cause why he, thesaid 

R. S., should not be fined according to law, for his non-attendance 
as a juror before our said justice, at his office in said county, on the 
day of , 18... in a certain cause then and there pend- 
ing, in which A. B. was plaintiff, and C. D. was defendant; and have 
you then and there this precept, with the date and manner of your 
service thereof. 

Witness, our said justice, this day of , 18 . . 

G.W. H , 

Justice of the Peace, 

Justice's Jurisdiction— Criminal Cases. 

The jurisdiction of Justices is limited. If the act cre- 
ating the oflfence fails to designate the amount of punish- 
ment, a Justice of the Peace has no jurisdiction. If the 
act creating the oflfence limits the punishment to a tine of 
not more than $50 or (but not and) iniprisonment for not 
more than 30 days, then the. justice has final jurisdiction 
of the case. 

So, also, justices have final jurisdiction of all assaults 
and assaults and batteries where no deadly weapon is 
used, unless serious damage is done. If no deadly weapon 
is used but serious damage is done, the justice cannot 
try the case. If twelve months pass by afte'r an oflfence 
is committed, and no justice has tried the case, then the 
Superior Court gains jurisdiction. 

Appeals in Criminal Cases. 

No bond for costs is required in such cases, but a bond 
is required conditioned that the defendant will make his 



176 Talks About Law— No. 32, 

appearance at the next term of the Superior Court. Nor 
does a defendant have to pay anything to take an appeal 
in a criminal case. In place of such bond one may exe- 
cute a mortgage on real or personal estate. — The Code^ 
sec. 120; Laws 189 1, ch. ^25, 

Cautioning tlie Prisoner. 

Every justice of the peace ought to be very familiar 
with sections 1144, 1145, 1146, 1147, 1148 of The Code. 
By these sections, in substance, it is provided that when 
a person charged with crime is brought before any jus- 
tice of the peace, such person shall be examined, not on 
oath, by the justice, who shall write the answers down. 
But that before the examination begins the prisoner shall 
be informed that he is "at liberty to refuse to answer 
any question that may be put to him, and that his refusal 
to answer shall not be used to his prejudice at any stage 
of the proceedings." Unless he is thus cautioned, what 
the prisoner says cannot be used against him at any sub- 
sequent trial. This is highly important. 

Jorlsdiction— Civil Causes. 

A justice of the peace cannot try any case in which 
the title to real estate is at issue. But simply pleading 
this as a defence does not oust the jurisdiction. The jus- 
tice must examine into the case, and, after hearing the 
evidence, if he finds that the title to real estate is at issue, 
he must dismiss the action. 

A justice may try' a civil action in which the sum 
demanded does not exceed $200. If the amount in dis- 
pute be more than $200 and the plaintiff forgives, in 



Justices of the Peace, 177 

writing, the excess above $200, the justice can still try the 
case. 

But there are some exceptions to this general rule ; for 
example : A justice cannot enjorce any equity. He can- 
not foreclose a mortgage. Nor can he wind up a part- 
nership. He cannot do these things even if the amount 
involved be less than $200, because he has no equitable 
jurisdiction. 

Jurisdiction of Toris. 

A tort, as we have seen, is a wrong done one. Now a 
justice can t^'y some cases of this kind, but only when 
the sum demanded does not exceed $50. For example : 
If A sues B for an unlawful battery, and demands only 
$50 damages, the justice has jurisdiction. If the sum 
demanded in such action exceeds $50 the justice has no 
jurisdiction. 

Appeal in Civil Cases. 

Either party may appeal in a civil case. The appeal- 
ing party does not have to give a bond of any kind 
(except in arrest and bail, and like cases) ; but he has to 
pay the justice thirty cents for the transcript. This 
entitles him to his appeal. If notice of appeal is not 
given in open court, the same must be in writing, and a 
copy must be served on the party not appealing, and on 
the J. P. within ten days after the judgment is rendered. 
The following is the form of such notice ; 



12 



178 Talks About Law— No. 32. 



[No. 39.] 

FORM OP NOTICE OF APPEAL TO THE SUPERIOR COURT. WHERE A NEW 
TRIAL OF THE WHOLE MATTER IS TO BE HAD. 

A B ) 

against \ Justice's Court. 



C U ) 

County of 

To G. W. H., Esq., a justice of the peace for said county: 

Take notice, that the defendant in the above action appeals to the 
Superior Court from the judgment rendered therein by you on the 

day of , 18.-, in favor of the plaintiff for the sum of 

sixty-five dollars damages, and the further sum of three dollars and 
seventy-five cents costs, and that this appeal is founded upon the 
ground that the said judgment is contrary to law and evidence. 

Dated this .. day of , 18.. 

W. W .. , 

Attorney for Appellant. 

Transcript on AppeaL 

Justices should always be careful to send up proper 
transcripts upon appeal. This form will answer : 

[No. 40.] 

RETURN TO NOTICE OF APPEAL LIKE THE FOREOOINO. 

A B ) 

against v County of 

C D ) 

To the Superior Court of County : 

An appeal having been taken in this action by the defendant, I. 
Q. W. H., the justice before whom the same was tried, in pursuance 
of the notice of appeal hereto annexed, do hereby certify and return 
that the following proceedings were had by and before me in said 
action: 

On the first of February, one thousand eight hundred and sixty- 
nine, at the request of the plaintiff. I issued a summons in his favor 
and against the defendant, which is herewith sent. Said summons 
was, on the return day thereof, returned before me at my office; and 
at the same time and place the parties personally appeared. 

The plaintiff complained for goods sold and delivered to defendant 
to the amount of $75. The defendant denied the right of the plaintiff 
to recover that amount for the goods, on the ground that he had 
paid, at or shortly after the purchase of said goods dollars 



Justices of the Peace, 179 

thereon; and he also claimed to have a nat < ff against the plain 'iff to 
the amount of $85 for board and lodging furnished to plaintiff, and 
wi>rk and labor done for him; and lie claimed to be entitled to judg- 
ment atrainflt the plaintiff for $ 

Bjth pa niep in trod need evidence upon theclaim'iso ra-ide by them, 
and after hearing their proofs and allegations, I rendered judgment 
in favor of the plaintiff and against the defendant, on the tenth of 
February, eighteen hundred and sixty- nine, for $65 damages, and for 
the further sum of $3.75, costs of the action. 

I also certify that on the eleventh February, eighteen hundred and 
sixty- nine, the defendant served the annexed notice of appeal on me, 
and at the same time paid me my fee for making my return. 

All of which I send, together with the process, pleadings, and other 
papers in the cause. 

Dated this 15th day of February, 1869. 

G. W.H 

Justice of the Peace, 

N. B. If the cause was tried by a jury state the fact and set forth 
the verdict, with the judgment thereon. It is not necessary to set 
out in the return a copy of any process, pleading, affidavit or other 
paper. It is sufficient to refer to such a paper as filed and as here- 
with sent. 



180 Talks About Law— No, 



WARRANTY DEED, 

STATE OF NORTH CAROLI.VA, \ 
Wake County. f 

This Deed, made this the 1st day of July, 1894, by Thomas Jones 
and wife Mary Jones, of Wake County, and State of North Carolina, 
of the first part, to William Upchurch, of \Vake County, and State of 
North Carolina, Witnesseth : That said Thomas Jones and wife Mary 
Jones in consideration of five hundred dollars, to them paid by said 
William Upchurch, the receipt of which is hereby acknowledged, 
have bargained and sold, and by these presents do bargain, sell and 
convey to said William Upchurch and his heirs, a certain tract or par- 
cel of land in Wake County, State of North Ca? olina. ad jo ning the 
lands of James Beck, Charles Busbee and others, bounded as follows, 
viz. : (Give metes and Abounds, if possible, and use the name by which 
the land is usually known; for example, "The Smith Place.") 

To have and to hold the aforesaid tract or parcel of land, and all 
privileges and appurtenances thereto belonging, to the said William 
Upchurch and his heirs and assigns, to their only use and behoof for- 
ever. 

And the said Thomas Jones, for himself and his heirs, doth covenant 
to and with said William Upchurch and his h( irs and assigns, that he 
is seized of said premises in fee, and has right to convey the same in 
fee-simple; that the same are free and clear from all incumbrances, 
and that he will warrant and defend the said title to the same against 
the claims of all persons whomsoever. 

In testimony whereof, the said Thomas Jones and wife Mary have 
hereunto set their hands and seals, the day and year above written. 

-Thomas Jones, [seal ] 
Mary Jones. [seal.] 

[For private examination see form under *• Deed of Trust.**] 



Deed of Trust 181 

DEED OF TRUST. 

STATE OF NORTH CAROLINA, ) 
Granvill-^. County. f 

This Indenture, made and entered into this 30th day of July, A. D. 
1894, by and between Thomas Jones and wife Susan Jones, of Gran- 
Tille County aforesaid, parties of the first part; Aaron Cooper, of said 
county in said State, party of the second part, and Crawford Smith, 
of Granville County aforesaid, party of the third part: 

Witnesseth, for that whereas the said Thomas Jones and wife Susan 
are indebted to the said Crawford Smith for money borrowed of him, 
in the sum of one thousand dollars, for which the said Thomas Jones 
and wife Susan have executed and delivered to said Crawford Smith 
as aforesaid, their bond of even date with this deed, in said sum of one 
thousand dollars, payable Ist January, 1895, after date, with interest 
thereon from date until paid, at the rate of eight per centum per 
annum, payable semi-annually, and it has been agreed that the pay- 
ment of said debt shall be secured by the conveyance of the land here- 
inafter described. 

Now, therefore, in consideration of the premises, and for the pur- 
pose aforesaid, and for the sum of one dollar to the x)arty of the first 
part paid by the party of the second part aforesaid, said Thomas Jones 
and wife Susan Jones have bargained, sold, given, granted and con- 
veyed, and by these presents do bargain, sell, give, grant and convey 
to said Aaron Cooper, his heirs and assigns, a certain tract of land 
lying and being in Granville County aforesaid, and more particularly 
described and defined as follows: (Give metes and bounds, if possible; 
also the name by which the place is usually designated, as " The Jones 
Place," "Cameron Quarter," etc.) 

To have and to hold said land and premises, with all the rights, 
privileges and appurtenances thereunto belonging, to him, said Aaron 
Cooper, his heirs and assigns, upon the trusts and for the uses and 
purposes following, and none other, that is to say: 

If the said parties of first part shall fail or neglect to pay interest 
on said bond as the same may hereafter become due, or both principal 
and interest at the maturity of the bond, or any part of either, then, 
on application of said Crawford Smith, his assignee or other person 
who may be entitled to the moneys due thereon, it shall be lawful for 
and the duty of said Aaron Cooper to advertise in three or more pub- 



182 Talks About Law— No, S2, 

lie places in Granville County aforesaid, for a time not less than thirty- 
days, therein appointing a day and place of sale and at such time and 
place to expose s id lands at public sale to the highest bidder, for cash, 
and upon such sale to convey title to the purchaser. 

And the said Aaron Cooper, first retaining two per centum commis- 
sions on the sale of the v^'hole of said land sold as a compensation for 
making such sale out of the proceeds of such sale, shall apply so much 
"of the residue as may be necessary to pay off and discharge said bond 
and all interest then accrued and due theieoh. and shall pay the sur- 
plus, if any remain, to said Thomas Jones. 

It is further stipulated and agreed that the dwelling on the above 
described land shall be kept insured in the sum of $500 for the benefit 
of this debt 

And it is stipulated and agreed that if said Thomas Jones and w fe 
shall pay off said bond and interest, and discharge fully the trusts 
herein declared, before such sale, or the same shall be done by a sale 
of part of said lands, then so much of said lands as may not have been 
sold and are not required to meet any of said trusts, shall be recon- 
veyed to said Thomas Jones, or the title thereto be revested in him 
according to the provisions of law. 

In testimony whereof, the said Thomas Jones and wife Susan Jones 
do hereby subscribe their respective names and affix their several seals. 

Thomas Jones, [skal ] 
Susan Jones. [seal J 

ACKNOWLEDGMENT OF THOMAS JONES AND PRIVATE EXAMINATION OF 
SUSAN JONES, HIS WIFE. 

STATE OF NORTH CAROLINA, / 
Grajjville County. j 

I, S. V. Ellis, a Justice of the Peace in and for the county and 
State aforesaid, do hereby certify that Thomas Jones and Susan Jones, 
his wife, personally appeared before me this day, in my county afore- 
said, and acknowledged the due execution of the foregoing deed of 
conveyance; and the said Susan Jones, being by me privately exam- 
ined, separately and apart from her said husband, touching her vol- 
untary execution of the same, doth state that she signed the same 
freely and voluntarily, without fear or compulsion of her said husband 
or any other person, and that she doth still voluntarily assent thereto. 

Witness my hand and pr.vate seal, this 80th day of July, A. D. 1894. 

S. V. Ellis, J. P. [seal.] 



Chattel Mortgage With Note Attached, 183 

CHATTEL MORTGAGE WITH NOTE ATTACHED. 

I. John SMfrn, of the county of Granville, in the State of North 
Carolina, am indebted to Peter Brown, of Granville County, in said 
State, in the sum of fifty dollars, for which he holds my note to be due 
on the 1st day of January, 1895, and tu secure the payment of the 
same I do hereby convey to him these articles of personal property, 
to- wit: My bay horse Bill and my entire crop of tobacco and corn 
growing on the lands of Amos Gooch in Fishing Creek township, said 
county, said lands known as the Trailer Place. 

But on this special trust : That if I fail to pay said debt and interest 
on or before the 1st day of January, 1895, then he may sell said prop- 
erty, or so much thereof as may be necessary, by public auction, for 
cash, first giving twenty days notice at three public places, and apply 
the proceeds of such sale to the discharge of said debt and interest on 
the same, and pay any surplus to me. 

Given under my hand and seal, this 2d day of July, 1894. 

Witness: John Smith, [seal.] 



|50. On or before the 1st day of January, 1895, with interest from 
date at the rate of eight per cent, per annum, I promise to pay to 
Peter Brown, or order, fifty dollars, for value received. 

Witness my hand and seal, this 2d day of July, 1894. 

John Smith, [seal.] 



FORM OF WILL, 

I, John Smith, of the county of Durham and State of North Caro- 
lina, do make, declare and publish this my last will and testament, 
hereby revoking all other wills heretofore made by me. 

My entire estate, real and personal, I give to my wife Susan, know- 
ing that at her death she will properly dispose of the same. 

Witness my hand and seal, the 2d July, 1894. 

Witnesses: John Smith, [seal.] 

1 

2 

N. B.— Unless the will is very simple, do not try to write it. 



INDEX. 



A PAGE. 

Abandonment of Crop 14 

Accidents 28-38 

Account, Mutual, Stated 99 

Acknowledgment in Writing ... ... 97 

Action for Damages 33, 38, 48, 61 

Administrator 155 

Advancements , 153 

Alfred the Great 80 

Alliance Store 131 

Appeal Bond, J. P 177 

Arrest and Bail 41 

Arrest on Sunday 142 

Ashes, burn House 118 

Assault and Battery, Jurisdiction of 175 

Assault, Action Barred 95 

Assets of Bank 129-132 

Attorney, Statute of Limitations 98 

Attachment, Forms in 162 

B 

Baggage 146 

Banks 127 

Battery, Jurisdiction 175 

Betterments 91 

Beehive Notes 108 

Bills -.. 107 

Boarding House, no Lien 144r-149 

Bonds 97-107 

BookDebt 96 

Bounds, Metes and 104 

Breach of Peace 70 

Bridges, Defective 31 

Bulls, Vicious 31 



186 Index. 

C PAGE. 

CapitalStock 129 

Carriers. Common, Express Companies are 55 

Cautioning Prisoner ----.-.r^.^..^ 176 

Caveat emptor 16 

Cemetery 59 

Chattel Mortgage, Form of 183 

Chickens in Garden .. - 40 

Child's Part 152 

Child born after will 158 

Churches ^ 113 

Churn Notes 108 

Circus 34 

Cities. Damages against 31 

Civil Damage Laws 37 

Client and Attorney * 98, 134 

Color of Title 103 

Common Carriers 55 

Common, Tenants in 105 

Contagious Diseases, Nuisances, etc 62 

Contracts with Hands 20 

Contributory Negligence 42 

Conversion 99 

Copartners 120 

Corporations 131 

Cotton, Sale by Tenant 15 

Counterclaim against Firm 125 

Criminal Trespass 63 

Crops - 14 

Curtesy 157-160 

D 

Dam, Mill , 61 

Damages 28, 38, 38,48, 61 

Damnum abseque injuria 31 

Dandie Dinmont 134 

Deadly Weapon in £[illing 67 

Death, Action for 42 



Index, 187 

PAGE. 

Deeds, Form of 180 

Deeds, Witnesses to .. . 157 

Demand, When Necessary 99 

Depositors in Bank 129 

Devise 157 

Directors, When Liable... 129 

Disabilities .. 93 

Dissolution of Copartnership.. .^ 124 

Distributions, Statute of 160 

Disturbing Religious Congregation 113 

Divorce * 80 

Dogs 2S-29 

Domain, Eminent 101 

Donatio Causa Mortis 158 

Dower 157-160 

Drum, Beating 32 

Ducks 30 

E 

Easement 101 

Ejectment 102 

Elephant 32 

Eminent Domain 101 

Enticing Servants .._ 21 

Entry, Forcible 63 

Executors 155 

Excusable Killing 67 

Express. 55 

Extra Fare 52 

F 

Family, The Unit 80 

Fare, Railroad . . 52 

Farming Contracts 17 

Father'sPart 152 

Feme Sole 76 

Fence Notes 108 

Fences 86 



188 Index. 

PAGE. 

Fire Insurance 114 

Fireworks... -. 31 

Fixtures 24 

Flag Flying 104 

Flues 26 

Forcible Trespass 63 

Foreclose Mortgage, Justice of the Peace cannot 177 

Forms for General Use 162 

Frauds, Statute of...'. ...85-88 

Freetrader :. 76 

Frightening Horses 33 

FruitTrees 27 

G 

Gifts to Churches, etc .. 112 

Growing Crops 14 

Grudge 71 

Guest 145 

H 

Hands 17 

Highway, Forcible Trespass in 66 

Holograph Will 157 

Hotch-pot.. .. .154 

Hotel ... 144 

House not Fixture 25 

Hunting, Sunday 142 

Husband's Interest in Wife's Land 156 

I 

Idiots, no Statute of Limitations 98 

Improvements 91 

Individual LiabiUty 127, 129, 132 

Infants 36,93 

Injunction Against Nuisances 61 

Injuries 28, 38,48,61 

Insurance 114 



Index, 189 

PAGE. 

Inns - 144 

Intestacy 162 

J 

Jurisdiction of J. P 135-175 

Jury before J. P. 174 

Justice of the Peace * 162 

L 

Landlord 13 

LawofFarm 13 

Law of Self-defence 67 

Lawyers 134 

Lease 13 

Legacy 159 

Lessee 13 

Lessor 13 

Lien of Inn Keeper 148 

Lien of Landlord 13 

Lightning Burns Dwelling 118 

Limitations of Actions 95 

Limitations, Statute of . . 93 

Limited Partnership. _- 120, 126 

Liquor to Minors 36 

Livery Stables ^ 59 

Livery Stables no Lien 148 

Limatics 93 

M 

Machinery, Defective 36, 40 

Magistrate 162 

Malice 71 

Manure 27 

Manslaughter 71 

Marriage Revokes Will 158 

Married Women 76 

Messages 35,47 

Military Company 32 



190 Index. 

PAGE. 

Mice 147 

Mill Dam ,., 61 

Mortgage, Forms of 181, 183 

Mortgage in lieu of Appeal Bond 176 

Murder 68 

N 

National Bank ' 132 

Negligence 48, 49 

Negotiable Bills 108 

No Admittance 40 

Notice to Keep off Land 64 

Notes and Bonds 107 

Nuisance 58 

Nuncupative Will 158 

P 

Packages by Express 55 

Partners 120 

Patent Notes .... 108 

Payment... .. 97 

Per stirpes 153 

Percent 150 

Pig-pen - 59 

Possession, nine points, etc 101 

Poisoning Ch'ckens 41 

Pressed to Wall 73 

Privy Examination .. 182 

Promise to Pay Debt of Another... 86 

Pullman Sleeper not an Inn 147 

Punitive Damages 34 

Purchaser for Value 108 

R 

Railroads 42,51.147 

Railroad Tickets 51 

Rats 147 

Religious Societies .. ... . Ill 



Index, 191 

PAGE. 

Rent, Wife's 158 

Right-of-way 101 

8 

Selfdefence . 67 

Serious Damage 17*) 

Servant, Enticing 21 

Set-off 41,125 

Sheep-killing Dog 'J9 

Shooting Burglar, etc 71 

Silent Partner 121 

Societies. Religious Ill 

Sow 29 

Spring-guns 3S 

Squatters 64 

Statute of Distributions ..152 

Statute of Limitations 93 

Statute of Limitations Appliable to Land ... 101 

Statute of Frauds 85,88 

Stockholders 129 

Suck-egg Dog 28 

Sunday Laws 140 

T 

Telegraph (Companies 47 

Telegrams 35.47 

Tenancy in Common . _. 105 

Tenants 14.15 

Testaments 157 

Ticket, Railroad 51 

Tobacco FJues . 26 

Tort 28 

Towns 31 

Trespass 63 

Trespassers 39 

Tying up Property 159 



192 Index. 

U PAGE. 

Unrepeated Message 48 

Usury 150 

V 

Vacant Dwelling Insured ._ 117 

w 

Warehouse 16 

Warranty Deed, Form of . . 180 

Wells, Badly Covered 39 

Widow 152 

Wife's Rent 156 

Wilful Trespass 63 

Will, No Will : 152 

Will, How to Write 157 

Will, Form of 183 

Witnesses to Will 157 

Woman, Married ^ 76 

Y 

Year's Support 152